During the Mexican-American War, Army General Winfield Scott forms a military commission to try 42 Irish-born deserters from the US military who had joined their fellow Roman Catholics in the Mexican army. All 42 are convicted. Twenty-seven are executed, 14 are flogged and branded, and one is pardoned. [USA Today, 11/15/2001]

During the Civil War, some 13,000 soldiers and civilians are tried before 5,000 military commissions. Among them are eight civilians with ties to the Confederacy. President Andrew Johnson, President Lincoln’s successor, signs the order for the commissions based on the recommendation of Attorney General James Speed, who argues that Lincoln’s assassination was an act of war against the US’s commander in chief. Historian Edward Steers will later argue that Johnson wants a military trial to avoid a jury of potential Confederate sympathizers drawn from the Washington, DC, populace. A panel of seven generals and two colonels finds all eight of the civilians with Confederate ties guilty of conspiring to assassinate Lincoln. Four are executed and four are jailed for lengthy prison terms. The proceedings are swift; the hangings take place less than three months after Lincoln’s assassination. Historian James Hall will later say of the commissions: “That’s the beauty of the thing… from the government’s perspective. Things move quickly, and from a legal standpoint it’s all self-contained.” [USA Today, 11/15/2001]

The McCarran-Walter Act repeals the racial restrictions of the 1790 Naturalization Law and grants first-generation Japanese-Americans the right to become citizens. Senator Pat McCarran (D-NV) is one of the strongest anti-Communist voices in the US Congress, and led investigations of the Roosevelt and Truman administrations. Along with Representative Francis Walter (D-PA), another outspoken anti-Communist, McCarran introduced the legislation bearing their names. Aside from granting Japanese-Americans citizenship, the law stiffens restrictions on “entry quotas” for immigrants into the US, and broadens the federal government’s power to admit, exclude, and deport “dangerous aliens” as defined by the Internal Security Act of 1950, another signature McCarran legislative success. [John Simkin, 2008; American Civil Liberties Union, 2012]

Abe Fortas. [Source: US Senate]Abe Fortas resigns from the Supreme Court under pressure. Fortas, a liberal Democrat and political crony of outgoing president Lyndon Johnson, was originally chosen by Johnson to replace retiring Chief Justice Earl Warren, but conservatives in the Senate blocked Fortas’s confirmation (see June 23, 1969). President Nixon intended to fill the Court with as many of his choices as possible, and he, along with conservative Republicans and Democrats who do not agree with Fortas’s liberal stance on civil rights, targeted Fortas for a smear campaign designed to force him off the bench. Nixon used what White House counsel John Dean will later call “an ugly bluff” against Fortas: He has Attorney General John Mitchell inform Fortas that he intends to open a special probe into Fortas’s dealings—while on the bench—with a financier already under investigation. Mitchell insinuates that he will put Fortas’s wife, herself an attorney and partner at Fortas’s former law firm, and other former partners of Fortas’s on the witness stand. Whether Fortas actually had any direct illegal dealings with this financier is unclear—certainly his dealings had such an appearance—but the bluff worked; Fortas agreed to retire early, thus clearing a position on the Court for Nixon to fill. Nixon will find it difficult to replace Fortas with one of the Southern conservatives he wants on the Court; Senate Democrats will lead successful efforts to block the nomination of two of Nixon’s nominees, the respected, moderately conservative Clement Haynsworth, and the virulently racist G. Harrold Carswell, himself recommended by Mitchell’s assistant, William Rehnquist. (Carswell’s failed nomination will produce a memorable statement from Senator Roman Hruska (R-NE), who, in defense of Carswell, tells the Senate: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”) Nixon will use the defeats to make political hay in the South by claiming that Senate Democrats do not want a Southerner on the bench. [Dean, 2007, pp. 127-129]

Warren Burger. [Source: US Government]Former appellate judge Warren Burger begins his term as Chief Justice of the Supreme Court. Burger was named months before by newly elected president Richard Nixon after two earlier candidates, former Eisenhower attorney general Herbert Brownell and former GOP presidential candidate Thomas Dewey, turned down the job. Supreme Court Associate Justice Abe Fortas was to be Chief Justice as one of then-president Lyndon Johnson’s last acts, but Senate Republicans, supported by conservative Senate Democrats who oppose Fortas’s civil rights rulings, successfully filibustered Fortas’s nomination and actually forced Fortas’s premature resignation (see May 14, 1969). The blocking of Fortas has an additional element: in June 1968, Chief Justice Earl Warren announced that he would step down, giving Johnson ample time to place Fortas in the position. However, Republican presidential candidate Richard Nixon wanted to name the Chief Justice himself, if he won the national election. To that end, Nixon sent word to Congressional Republicans to block Johnson’s naming of a replacement for Warren. Senate Republicans launched the filibuster after being given information that intimated Fortas had received an inordinately large honorarium for teaching a course at American University, a sum said to have been raised by one of his former law partners. [Dean, 2007, pp. 127-128]

Deputy Attorney General William Rehnquist is sworn in as an associate justice of the Supreme Court, replacing the retiring John Harlan. Rehnquist was active in the Arizona Republican Party, and became well-known in the state as a conservative activist who, among other things, opposed school integration. Rehnquist befriended fellow Phoenix attorney Richard Kleindienst, who, after becoming attorney general under Richard Nixon, brought Rehnquist into the Justice Department. Rehnquist faced little difficulty in his confirmation hearings in the Democratically-led Senate Judiciary Hearings. [Oyez (.org), 9/3/2005] Rehnquist may have perjured himself during those hearings. He was confronted with charges that, as a Republican Party attorney and poll watcher, he had harassed and challenged minority voters in Arizona during the 1962, 1964, and 1966 elections. Rehnquist swore in an affidavit that the charges were false, even though the evidence available to the Senate showed Rehnquist did take part in such activities, which were legal in Arizona at the time. (Rehnquist will again deny the charges in 1986, when he is nominated for chief justice—see September 26, 1986). Former Nixon White House counsel John Dean will observe: “After reading and rereading his testimony, it appears to me that what he was really saying to the Senate [in 1971] was that he was not quite sure himself of his behavior, but he could not bring himself to tell the truth. Thus, his blanket 1971 denial forced him to remain consistent to that denial in 1986, and since his blanket denial was a lie, he had to continue lying. His false statement to Congress in 1971 was a crime, but the statute of limitations had passed. His false statement to Congress in 1986, however, was pure perjury.” [Dean, 2007, pp. 129-137]

The Congressional Budget and Impoundment Control Act becomes law. The act establishes the Congressional Budget Office (CBO) and restricts the ability of the president to block the use of funds once they have been appropriated by Congress. [Roberts, 2008, pp. 10]

Representatives William Moorhead (D-PA) and Frank Horton (R-NY) cosponsor a series of amendments designed to improve the effectiveness of the 1966 Freedom of Information Act (FOIA). The law is designed to make it easier for journalists, researchers, and citizens to see government records, but in practice the law is cumbersome: agencies have little impetus to produce documents in a timely manner, charge exorbitant fees for searching and copying documents, and too often battle FOIA requests in court. With Watergate fresh in legislators’ minds, the amendments to FOIA are welcome changes. The amendments expand the federal agencies covered, and mandate expediting of document and record requests. But as the bill nears final passage, senior officials of the Ford White House are mobilizing to challenge it. The CIA, Defense and Treasury Departments, Civil Service, and many on President Ford’s staff, including Deputy Chief of Staff Dick Cheney, all urge a veto. Most bothersome is the provision that a court can review a federal decision not to release a document requested under FOIA. Ford will veto the bill, but Congress will override the vetoes (see November 20, 1974). [Dubose and Bernstein, 2006, pp. 29-30]

President Ford, weighing whether or not to sign into law a set of amendments strengthening the Freedom of Information Act (FOIA—see January 1974 - September 1974), is given a memo by aide Ken Cole. In it, Cole writes: “There is little question that the legislation is bad on the merits, the real question is whether opposing it is important enough to face the political consequences. Obviously, there is a significant political disadvantage to vetoing a Freedom of Information bill, especially just before an election, when your administration’s theme is one of openness and candor.” [National Security Archive, 11/23/2004] Ford will veto the bill, but Congress will override his veto (see November 20-21, 1974).

The Freedom of Information Act (FOIA), passed in 1966, is significantly strengthened by a series of amendments (see January 1974 - September 1974) which become law over President Ford’s veto. Ford initially wanted to sign the bill as soon as it came to his desk from Congress, but was persuaded to veto it by Chief of Staff Donald Rumsfeld, Defense Secretary Dick Cheney, and the head of the Justice Department’s Office of Legal Counsel, Antonin Scalia. Rumsfeld and Cheney argued that the bill would promote leaks to the media from within the administration, and Scalia wrote a brief judging that the bill was unconstitutional. But Congress, weary of opposition after almost 11 years of investigations, reports, and hearings (and out of patience with executive foot-dragging after the Watergate investigations), is ready to pass the bill. The House of Representatives votes overwhelmingly to override Ford’s veto by a 371-31 vote. The Senate votes to override the veto 65-27. As a result, government attempts to hinder FOIA requests—subjecting requesters to unusual delays, charging requesters exorbitant prices for copying and searching, subjecting requesters to bureaucratic run-arounds, mixing confidential and exempt materials with non-exempt materials and using that juxtaposition to refuse to release materials, and forcing requesters to file costly lawsuits to force compliance—will be markedly constrained. [National Security Archive, 11/23/2004; Roberts, 2008, pp. 10]

The Federal Election Commission (FEC) hands down an “advisory opinion” that, according to the mandates of the newly passed amendments to the Federal Election Campaign Act (FECA—see 1974), allows corporations to spend general funds on solicitation of donations from stockholders and employees. The case stems from an attempt by Sun Oil Corporation to solicit employees, both union and non-union, for contributions to the corporation’s PAC, SUN PAC. The FEC’s advisory opinion, which by law is binding, reads in part, “It is the opinion of the Commission that Sun Oil may spend general treasury funds for solicitation of contributions to SUN PAC from stockholders and employees of the corporation.” The FEC’s reasoning is that the money is to be segregated according to the Supreme Court’s Pipefitters decision (see June 22, 1972), businesses have for years solicited their employees for both political and non-political causes, and FECA says that contributions to a separate segregated fund may not be secured by “job discrimination” or “financial reprisals.” Neither Congress nor the unions are pleased with the ruling. If corporations had been restricted to soliciting only their stockholders, they could have solicited only twice as many individuals as the labor unions, but with the ruling in place, corporations effectively can now solicit virtually the entire workforce of the nation. It is this decision that in part sparks the “PAC boom” among corporate PACs, which sees the number and funding of corporate PACs increase dramatically. [Campaign Finance Timeline, 1999]

President Ford issues Executive Order 11905, which limits the power of the CIA, the NSA, and military intelligence to engage in surveillance of US citizens. Perhaps its most well-known provision is a total ban on “political assassinations” by US government personnel. [Gerald R. Ford, 2/18/1976; Roberts, 2008, pp. 38] The provision is sparked by the Church Commission’s finding (see April, 1976) that assassination is “unacceptable in our society,” and a political embarassment, especially botched attempts such as the CIA’s efforts to kill Cuba’s Fidel Castro. [Grant J. Lilly, 4/6/2006]

Following the revelations of the Church Committee’s investigation into the excesses of the CIA (see April, 1976), and the equally revealing New York Times article documenting the CIA’s history of domestic surveillance against US citizens for political purposes (see December 21, 1974), Congress passes the Foreign Intelligence Surveillance Act (FISA). In essence, FISA prohibits physical and electronic surveillance against US citizens except in certain circumstances affecting national security, under certain guidelines and restrictions, with court warrants issued by the Foreign Intelligence Surveillance Court (FISC), operating within the Department of Justice as well as with criminal warrants. FISA restricts any surveillance of US citizens (including US corporations and permanent foreign residents) to those suspected of having contact with “foreign powers” and terrorist organizations. FISA gives a certain amount of leeway for such surveillance operations, requiring that the administration submit its evidence for warrantless surveillance to FISC within 24 hours of its onset and keeping the procedures and decisions of FISC secret from the public. [Electronic Frontier Foundation, 9/27/2001; Legal Information Institute, 11/30/2004] On September 14, 2001, Congress will pass a revision of FISA that extends the time period for warrantless surveillance to 72 hours. The revision, part of the Intelligence Authorization Act of 2002, will also lower the standard for the issuance of wiretap warrants and make legal “John Doe,” or generic, warrants that can be used without naming a particular target. FISA revisions will also expand the bounds of the technologies available to the government for electronic and physical surveillance, and broaden the definitions of who can legally be monitored. [US Senate, 9/14/2001; Senator Jane Harman, 2/1/2006]

President Jimmy Carter. [Source: The Sietch.org]President Jimmy Carter issues Executive Order 12036, in effect banning domestic surveillance by the CIA and other US intelligence agencies. Carter writes, “No agency within the Intelligence Community shall engage in any electronic surveillance directed against a United States person abroad or designed to intercept a communication sent from, or intended for receipt within, the United States except as permitted by the procedures established pursuant to section 2-201.” That exception allows for the surveillance of US citizens in the case of acquiring “[i]nformation about the capabilities, intentions and
activities of foreign powers, organizations, or persons and their agents…. The measures employed to acquire such information should be responsive to legitimate governmental needs and must be conducted in a manner that preserves and respects established concepts of privacy and civil liberties.” The order also flatly prohibits any assassinations by government officials, saying, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.… No agency of the Intelligence Community shall request or otherwise encourage, directly or indirectly,
any person, organization, or government agency to undertake activities forbidden by this order or by applicable law.” [White House, 1/24/1978]

President Jimmy Carter issues Executive Order 12129, “Exercise of Certain Authority Respecting Electronic Surveillance,” which implements the executive branch details of the recently enacted Foreign Intelligence Surveillance Act of 1978 (FISA) (see 1978). [Jimmy Carter, 5/23/1979] The order is issued in response to the Iranian hostage crisis (see November 4, 1979-January 20, 1981). [Hawaii Free Press, 12/28/2005] While many conservatives will later misconstrue the order as allowing warrantless wiretapping of US citizens in light of the December 2005 revelation of George W. Bush’s secret wiretapping authorization (see Early 2002), [Think Progress, 12/20/2005] the order does not do this. Section 1-101 of the order reads, “Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.” The Attorney General must certify under the law that any such warrantless surveillance must not contain “the contents of any communication to which a United States person is a party.” The order does not authorize any warrantless wiretapping of a US citizen without a court warrant. [Jimmy Carter, 5/23/1979; 50 U.S.C. 1802(a); Think Progress, 12/20/2005] The order authorizes the Attorney General to approve warrantless electronic surveillance to obtain foreign intelligence, if the Attorney General certifies that, according to FISA, the communications are exclusively between or among foreign powers, or the objective is to collect technical intelligence from property or premises under what is called the “open and exclusive” control of a foreign power. There must not be a “substantial likelihood” that such surveillance will obtain the contents of any communications involving a US citizen or business entity. [Federal Register, 2/4/2006]

President Ronald Reagan issues Executive Order 12333, which directs the US intelligence community to provide foreign intelligence data to the White House. The order reads in part, “[A]gencies are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.” It establishes rules of conduct for the intelligence agencies, and mandates a certain level of Congressional oversight. [Executive Order 12333 -- United States intelligence activities, 4/5/2007] It also establishes the basis for what are later called “National Security Letters.” These NSLs, originally envisioned for use to compile information in hunts for foreign criminals and suspected terrorists, will later be used by the administration of George W. Bush to order US booksellers, librarians, employers, Internet providers, and others to turn over records and information they compile on US citizens, with strict adjuncts against allowing those targeted for surveillance to know about the NSLs and with virtually no government oversight (see October 25, 2005). [Washington Post, 11/6/2005] It does not, as some have later asserted, directly prohibit the assassination of targeted foreign subjects—i.e. terrorist suspects and even foreign leaders—though it does restrict the use of assassination by US government operatives to certain very restricted circumstances centered around critical aspects of national security. [Parks, 11/2/1989 ]

According to former Reagan Justice Department official Terry Eastland, writing in his 1992 book Energy in the Executive, the process of selecting Antonin Scalia as a Supreme Court Justice begins now, well before anyone knows there will be a vacancy for him. Attorney General Edwin Meese asks his assistant attorney general, William Bradford Reynolds, to advise him in preparing a nominee, “just in case.” Reynolds assembles a team of Justice Department officials, who examine about twenty possible choices, mostly federal judges, focusing primarily on conservative judicial philosophy. Two individuals stand out: Robert Bork and Scalia. Eastland writes, “Neither was ranked over the other; both were regarded as the best available, most well-qualified exponents of Reagan’s judicial philosophy.” Both are seen as powerful and influential legal figures. When Chief Justice Warren Burger announces his decision to retire from the bench, Reynolds advises Meese to choose Justice William Rehnquist to replace Burger as Chief Justice (see September 26, 1986), and to choose either Bork or Scalia to replace Rehnquist. Reagan makes the final decision: Scalia. [Dean, 2007, pp. 133]

Antonin Scalia. [Source: Oyez.org]Appeals court judge Antonin Scalia is sworn in as an Associate Justice of the US Supreme Court. [Legal Information Institute, 7/30/2007] Although Scalia is an ardent social conservative, with strongly negative views on such issues as abortion and homosexual rights, Scalia and Reagan administration officials both have consistently refused to answer questions about his positions on these issues, as President Reagan did at his June announcement of Scalia’s nomination. [Ronald Reagan Presidential Library, 6/17/1986] Scalia’s nomination is, in the words of Justice Department official Terry Eastland, “no better example of how a president should work in an institutional sense in choosing a nominee….” Eastland advocates the practice of a president seeking a judiciary nominee who has the proper “judicial philosophy.” A president can “influence the direction of the courts through his appointments” because “the judiciary has become more significant in our politics,” meaning Republican politics. [Dean, 2007, pp. 132] Scalia is the product of a careful search by Attorney General Edwin Meese and a team of Justice Department officials who wanted to find the nominee who would most closely mirror Reagan’s judicial and political philosophy (see 1985-1986).

William Rehnquist. [Source: US Department of Justice]Associate Justice William Rehnquist becomes Chief Justice of the Supreme Court. A strict conservative, Rehnquist will oversee the transformation of the Court from a middle-of-the-road, sometimes left-leaning instrument into a conservative entity dominated by the “axis” of Rehnquist, Antonin Scalia (see September 26, 1986), and Clarence Thomas (see July 2-August 28, 1991). [Legal Times, 9/5/2005]False Testimony? - According to former Nixon White House counsel John Dean, writing in his 2007 book Broken Government, Rehnquist is the first true conservative fundamentalist to be appointed to the Court, “and he would set a pattern for other fundamentalists who found it necessary to make their way through the confirmation process by deception.” Dean, and others, have alleged that Rehnquist lied to the Senate both in his 1971 appointment to the Court as an associate judge (see January 7, 1972) and in his 1986 hearings for becoming chief justice. Dean will write that Rehnquist’s testimony during both sets of Senate confirmations hearings was “conspicuously false,” and in 1986 he committed “pure perjury.” In both sets of hearings, Rehnquist was embarrassed by a 1952 memo he had written while clerking for then-Justice Robert Jackson, in which Rehnquist had urged Jackson not to vote in support of the Brown v. Board of Education verdict that overturned the “separate but equal” clause that allowed for state-sponsored segregation. Although it is clear Rehnquist was stating his own pro-segregationist views, he apparently lied to the Senate over this memo as well, claiming that the memo was written to reflect Jackson’s own views and not his own. Dean will write, “It was an absurd contention, and a defamation of the dead justice for which he worked.” Law professor Laura Ray will observe in 1996: “With the [top] seat on the Supreme Court almost in his grasp, Rehnquist may well have retreated from an uncomfortable position taken almost twenty years earlier in the only way that seemed open to him. That such a step might tarnish the reputation of Justice Jackson years after his death does not seem to have been a concern.” [Dean, 2007, pp. 129-137]

Robert Bork. [Source: National Constitution Center]The controversial nomination of conservative judge Robert Bork to the Supreme Court is defeated in the US Senate. Bork is denied a seat on the Court in a 58-42 vote, because his views are thought to be extremist and even some Republicans vote against him. 'Right-Wing Zealot' - Bork, nominated by President Reagan as one of the sitting judges who most completely reflects Reagan’s judiciary philosophy (see 1985-1986), is characterized even by administration officials as a “right-wing zealot.” Reagan also wants a nominee to placate the hard right over their disaffection caused by the brewing Iran-Contra scandal. However, to make him more palatable for the majority of Americans, Reagan officials attempt to repackage Bork as a moderate conservative. Senate Judiciary Committee member Edward Kennedy (D-MA) attacks Bork’s political philosophy, saying before the committee hearings: “[In Bork’s America] women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is the—and is often the only—protector of the individual rights that are the heart of our democracy.… No justice would be better than this injustice.” Kennedy’s words provoke complaint, but the characterization of Bork is based on his lengthy record of court verdicts and his large body of judicial writings. Racial Equality Issues - Although there is no evidence to suggest that Bork is himself a racist, former Nixon White House counsel John Dean will write that “his positions on civil rights were an anathema to all who cared about equality in America.” Constitutional law professor Herman Schwartz will write in 2004, “Bork condemned the Fourteenth Amendment’s Equal Protection Clause decisions outlawing the poll tax (to him it was just ‘a very small tax’), the decision establishing the one-person, one-vote principle, abolishing school segregation in the District of Columbia, barring courts from enforcing racially restrictive housing covenants, preventing a state from sterilizing certain criminals or interfering with the right to travel, and prohibiting discrimination against out-of-wedlock children…. Bork’s hostility to governmental action on behalf of minorities did not stop with his critique of court action. In 1963 he criticized a section of the proposed Civil Rights Act of 1964 that required white businesses to serve blacks as resting on a principle of ‘unsurpassed ugliness.’” Ready to Fight - The Reagan administration understands that Bork’s nomination is opposed; on July 1, the day of his announced nomination, the media reports that Reagan will try to ensure Bork’s confirmation by waging an “active campaign.” Even Senate-savvy James Baker, Reagan’s chief of staff, is uncertain about Bork’s chances at being confirmed, and further worries that even if Bork wins the fight, the cost to Reagan’s political capital will be too high. His Own Worst Enemy - Conservatives Justice Department official Terry Eastland will later say Senate Democrats sabotage Bork’s chances at faring well in the confirmation hearings, even positioning his table to ensure the least favorable angles for Bork on television. However, the public’s opinion of Bork is unfavorable, and Dean will write: “[I]t was not the position of his chair in the hearing room that made Bork look bad, but rather his arrogance, his hubris, and his occasional cold-bloodedness, not to mention his equivocations and occasional ‘confirmation conversions,’ where he did what no one else could do. He made himself a terrible witness who did not appear to be truthful.” The confirmation conversions even surprise some of his supporters, as Bork abandons his previous stances that the First Amendment only applies to political speech, and the Fourteenth Amendment’s equal protection clause does not apply to women. The Senate Judiciary Committee passes Bork’s nomination along to the full Senate, where Bork is defeated 58-42. The Verb 'To Bork' - In 2007, Dean will write, “Bork’s defeat made him both a martyr and a verb,” and quotes conservative pundit William Safire as writing that “to bork” someone means to viciously attack a political figure, particularly by misrepresenting that figure in the media. [Dean, 2007, pp. 137-143]

After Robert Bork’s nomination to the Supreme Court fails (see July 1-October 23, 1987), President Reagan nominates an equally hard-line conservative, appeals court judge Douglas Ginsberg. Ginsberg withdraws his nomination after the press learns that he had ignored a serious conflict-of-interest problem while at the Department of Justice, that he had smoked marijuana as both a student and a professor at Harvard Law School, and that, though Ginsberg professes to be stringently anti-abortion, his wife is a doctor who has herself performed abortions. Reagan will nominate a third and final selection for the Court, the somewhat more moderate Anthony Kennedy. [Washington Post, 1998; Federal Judicial Center, 9/26/2006; Dean, 2007, pp. 143-144]

When Supreme Court Justice Thurgood Marshall, the first and only African-American to serve on the Court, announces his retirement, the Bush administration is ready with a far more conservative replacement. President Bush himself is already under fire for previously naming a moderate, David Souter, to the Court, and Bush is determined to give his conservative base someone they can back. Although Bush had wanted to nominate an appropriately conservative Hispanic, his eventual nomination is Clarence Thomas, who is completing his first year as a judge on the DC Court of Appeals. Thomas has two qualifications that Bush officials want: like Marshall, he is African-American; unlike Marshall, he is as conservative a jurist as Antonin Scalia (see September 26, 1986) or Robert Bork (see July 1-October 23, 1987). Two of former President Reagan’s closest legal advisers, C. Boyden Gray and Lee Liberman (a co-founder of the conservative Federalist Society), privately call Thomas “the black Bork.” Bush calls Thomas “the most qualified man in the country” for the position. [New York Times, 7/2/1991; Dean, 2007, pp. 146-153] During the July 2 press conference to announce Thomas’s nomination, Bush says: “I don’t feel he’s a quota. I expressed my respect for the ground that Mr. Justice Marshall plowed, but I don’t feel there should be a black seat on the Court or an ethnic seat on the Court.” For his part, Thomas extols his upbringing as a desperately poor child in Georgia, crediting his grandmother and the nuns who taught him in Catholic schools as particular influences on his life and values. Republican senator Orrin Hatch says that opposing Thomas will be difficult: “Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper.” [New York Times, 7/2/1991] However, the non-partisan American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.” One senior Congressional aide calls the assessment of Thomas “the equivalent of middling.” [New York Times, 8/28/1991; Dean, 2007, pp. 146-153] In 2007, former Nixon White House counsel John Dean will write, “For the president to send a nominee to the Supreme Court with anything less than a uniformly well-qualified rating is irresponsible, but such decisions have become part of the politicization of the judiciary.” Thomas, himself a beneficiary of the nation’s affirmative action programs, opposes them, once calling them “social engineering;” he has no interest in civil rights legislation, instead insisting that the Constitution should be “color-blind” and the courts should stay out of such matters. Civil rights, women’s rights, and environmental groups are, in Dean’s words, “terrified” of Thomas’s nomination. To overcome these obstacles, the Bush administration decides on a strategy Dean calls “crude but effective… us[ing] Thomas’s color as a wedge with the civil rights community, because he would pick up some blacks’ support notwithstanding his dismal record in protecting their civil rights. [New York Times, 7/2/1991; Dean, 2007, pp. 146-153] The nomination of an African-American quells some of the planned resistance to a conservative nominee promised by a number of civil rights organizations. [New York Times, 7/2/1991] Three months later, Thomas will be named to the court after a bitterly contentious brace of confirmation hearings (see October 13, 1991).

Clarence Thomas. [Source: AP / World Wide Photos]The Senate Judiciary Committee hearings for Supreme Court nominee Clarence Thomas begin (see July 2-August 28, 1991). Thomas is exhaustively coached by a team headed by former senator John Danforth (R-MO), whom Thomas had worked for when Danforth was attorney general of Missouri. As per his coaching, Thomas says as little as possible in response to senators’ questions, staying with generalities and being as congenial, diffident, and bland as the questions will allow. Still, some of his statements defy belief. Abortion Rights - Thomas is well-known as an ardent opponent of abortion rights, but he claims in testimony that he has no position on the fundamental abortion case of Roe v. Wade (see January 22, 1973), even though he has disparaged the case in his own legal writings. He even claims not to have discussed the case with anyone. His sympathetic biographer Andrew Peyton Thomas (no relation) later admits that “these representations about Roe proved a laughingstock.” Even conservative stalwart Paul Weyrich, who is running a “war room” to counter any negative statements about Thomas in the press or in the hearings, says publicly that Thomas has spoken of the case in discussions between the two, and calls Thomas’s dissembling “disingenuous” and “nauseating.” Weyrich considers, and rejects, withdrawing his support for Thomas. Comparison with Rehnquist Hearings - Author and former Nixon White House counsel John Dean will write, “[I]t was clear that Thomas was going the route that [Supreme Court Justice William] Rehnquist had traveled” (see September 26, 1986): “Say anything that was necessary to win confirmation, regardless of the conspicuousness of the lie. Regrettably, it would get worse.” The Senate Judiciary Committee splits on sending Thomas’s name to the full Senate, 7-7, therefore making no recommendation either way. But head counts show that Thomas has a narrow but solid majority of senators ready to vote him onto the bench. [Dean, 2007, pp. 146-153]

Anita Hill. [Source: ABC News]Clarence Thomas’s Senate confirmation hearings for the Supreme Court (see October 13, 1991) are muddied by explosive charges of sexual harassment. Anita Hill, a conservative, African-American law professor who once worked for Thomas both at the Department of Education and at the Equal Employment Opportunity Commission (EEOC), testifies before the Senate Judiciary Committee about Thomas’s alleged sexual advances towards her. The committee learned of the allegations from one of Hill’s close friends, who says that Hill was the victim of frequent and pernicious sexual harassment by Thomas. The committee has investigated Hill’s claims, but until now, the reticent Hill has been unwilling to come forward publicly and make the charges. (The FBI is conducting an investigation of the charges as well, though the investigation will be inconclusive.) After the story breaks in the press on October 6, committee members persuade her to come forward and lodge formal charges with the committee, thus allowing them to make her allegations public. The committee opens a second round of hearings to determine the accuracy of Hill’s charges. Hill’s testimony before the committee is calm and lethally specific. [Dean, 2007, pp. 146-153]Testimony - Hill tells the committee: “I am not given to fantasy. This is not something I would have come forward with if I was not absolutely sure of what I was saying.” Hill testifies: “He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals, and films showing group sex or rape scenes. He talked about pornographic materials depicting individuals with large penises or large breasts involved in various sex acts. On several occasions Thomas told me graphically of his own sexual prowess.” He also “referred to the size of his own penis as being larger than normal” and spoke of the pleasure he had “given to women with oral sex.” Thomas spoke of his fondness for films depicting sex with animals, and of his particular fondness for one actor known as “Long Dong Silver.” Her last encounter with Thomas was in 1983, when, on her last day as an employee at the EEOC, she agreed to go to dinner with him after he “assured me that the dinner was a professional courtesy only.” She adds: “He made a comment I vividly remember.… He said that if I ever told anyone of his behavior, that it would ruin his career.” Judith Resnick, a law professor at the University of Southern California Law Center, says of Hill’s testimony, “You’re seeing a paradigm of a sexual-harassment case.” Asked why she is testifying now after so many years of silence, Hill says: “I have nothing to gain here. This has been disruptive of my life, and I’ve taken a number of personal risks.” She says she has been threatened, though she does not elaborate on the alleged threat. She concludes: “I have not gained anything except knowing that I came forward and did what I felt that I had an obligation to do. That was to tell the truth.” [Time, 10/21/1991] Thomas will vehemently deny the charges (see October 11-12, 1991), and his conservative supporters will smear Hill in the hearings (see October 8-12, 1991).

The conservative supporters of Supreme Court nominee Clarence Thomas (see October 13, 1991) ferociously respond to charges of sexual harassment against Thomas (see October 8, 1991 and October 11-12, 1991) by former employee Anita Hill. According to David Brock, a right-wing reporter who will write a scathing “biography” of Hill after the hearings, Thomas’s supporters quickly devise a strategy to counter the charges. They decide to portray the entire affair as a conspiracy by liberals to besmirch Thomas in order to keep a conservative off the Court. A team of Federalist Society lawyers works feverishly to find, or concoct, evidence to discredit Hill. One of the most effective counters comes from a story which Hill related to the committee, that Thomas had once turned to her and asked, “Who put this pubic hair on my Coke?” Federalist Society member Orrin Hatch (R-UT), a member of the Senate Judiciary Committee, is told by a staff member that a similar scene involving pubic hair and a glass of gin appears in the novel The Exorcist, and accuses Hill of lifting the scene from the novel and retelling it for her story of harassment. [Dean, 2007, pp. 146-153] Hatch also accuses Hill of working with “slick lawyers” in a conspiracy to destroy Thomas’s nomination. Thomas supports that view; when asked if he believed Hill fabricated her story, Thomas replies, “Some interest groups came up with this story, and this story was developed specifically to destroy me.” [Time, 10/21/1991] Fellow committee member Arlen Specter (R-PA) excoriates Hill in a long and brutal round of questioning, at one point accusing her of perjury. He even submits a psuedo-psychological analysis of Hill to the committee that portrays her as imagining the events she is testifying towards. Committee member Alan Simpson (R-WY) suggests that he has damaging information about Hill’s own sexual proclivities, although he never provides that material for examination. Four witnesses testify to the accuracy of Hill’s charges; a string of character witnesses testify on behalf of Thomas. [Dean, 2007, pp. 146-153] One of them testifies that he believes Hill was “unstable” and indulged in romantic fantasies about him. [Time, 10/21/1991] Democratic chairman Patrick Leahy (D-VT) and other committee Democrats do virtually nothing to defend Hill. Not only do they allow their Republican colleagues to “savage her,” in Dean’s words, but they refuse to release evidence they have compiled that supports Hill’s charges, including records of Thomas’s regular purchase of pornography and the statements of numerous other witnesses who have given statements in support of Hill, two even stating that they were also harassed by Thomas. They also fail to tell the committee that Hill has passed a polygraph test about her allegations. [Dean, 2007, pp. 146-153]

Clarence Thomas defends himself against Anita Hill’s allegations. [Source: MSNBC]Supreme Court nominee Clarence Thomas (see October 13, 1991) responds to charges of sexual harassment from a former employee, law professor Anita Hill (see October 8, 1991). Thomas denies the charges, calling them a “travesty” and “disgusting,” and says that “this hearing should never occur in America.” [Dean, 2007, pp. 146-153] “This is not American; this is Kafkaesque. It has got to stop. It must stop for the benefit of future nominees and our country. Enough is enough.” [Time, 10/21/1991] He accuses the committee of concocting the story out of whole cloth, and says: “The Supreme Court is not worth it. No job is worth it. I’m not here for that.…This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree.” [Dean, 2007, pp. 146-153] “No job is worth what I’ve been through—no job. No horror in my life has been so debilitating. Confirm me if you want. Don’t confirm me if you are so led.… I will not provide the rope for my own lynching. These are the most intimate parts of my privacy, and they will remain just that, private.” Some observers wonder if Thomas is preparing to withdraw his nomination. But, though he says, “I would have preferred an assassin’s bullet to this kind of living hell,” he insists he would “rather die than withdraw.” [Time, 10/21/1991] While Thomas’s denials, and counter-charges of racism, are powerful, and make a tremendous impression on reporters, there are several fundamental flaws with his statement. The denial was not, as characterized by the press, a spontaneous outpouring of outraged innocence, but a carefully written and rehearsed performance, coached by his Republican handlers. And though he responds dramatically to Hill’s charges, he admits in the hearings that he never actually watched her testimony; his wife watched portions of it and reported back to Thomas. Though he denies Hill’s allegations that he asked her out for dates several times, and initially denies ever having any contact with her outside of work, he admits later in the hearings that he drove her home several times and stayed to discuss politics over “a Coke or a beer.” He admits that on “several instances” he visited her home outside of work entirely. Finally, the evidence gathered by the committee, and by researchers after Thomas’s ascension to the Court, overwhelmingly supports Hill’s allegations. Thomas never presents a shred of evidence to refute her charges. [Time, 10/21/1991; Dean, 2007, pp. 146-153]

Clarence Thomas survives the Senate hearings to join the Supreme Court. [Source: PBS]The full Senate votes to confirm Clarence Thomas (see July 2-August 28, 1991, October 8, 1991, and October 11-12, 1991) on a 52-48 vote, the lowest margin of victory by any Supreme Court nominee in US history. It is possible that some senators’ votes are influenced by a wash of “fast-action” polls reported by the White House, purporting to show that African-Americans overwhelmingly support Thomas, and a majority of citizens support Thomas’s confirmation. A year later, analysis proves those polls to be completely wrong. [Thomas Hearings Website, 8/1997; Dean, 2007, pp. 146-153] In 1992, Senator Joseph Biden (D-DE), a member of the Senate Judiciary Committee, will say: “That last hearing was not about Clarence Thomas. It was not about Anita Hill. It was about a massive power struggle going on in this country, a power struggle between women and men, and a power struggle between minoritites and the majority.” [Thomas Hearings Website, 8/1997]

The Government Accountability Office (GAO) releases a study of the Office of Professional Responsibility (OPR) called “Employee Misconduct: Justice Should Clearly Document Investigative Actions.” The report is drafted at the request of the House Government Information, Justice, and Agriculture Subcommittee. The GAO finds that: OPR operates informally, does not routinely document key aspects of its investigations, and provides little background information in its case documentation; OPR generally does not record the complete scope of and rationale behind its investigations, or of the decisions reached in the course of its investigations; OPR’s conclusions that allegations are or are not substantiated are generally not explained; In many instances, OPR does not pursue all available avenues of inquiry; OPR counsel rely on an attorney’s judgment and informal consulting among attorneys within OPR as the basis for making decisions and reaching conclusions about specific investigations. The GAO concludes that these failings expose the OPR and the department to a range of risks, such as if OPR’s informality led it to conclude an investigation prematurely, the department’s integrity could be compromised. In addition, if asked to defend an investigation against a charge that it was not aggressively pursued, OPR probably would not have sufficient documentation to do so. A review of the quality of an investigation based on the documentation would yield little information. Therefore, the GAO recommends that OPR: Establish basic standards for conducting its investigations; Establish case documentation standards; Follow up more consistently on the results of misconduct investigations done by other units and what disciplinary actions, if any, are taken as a result of all misconduct investigations. [US Congress, 9/10/1992]

Deputy Defense Secretary Donald J. Atwood issues an administrative order placing all military attorneys under the control of White House civilian officials. The controversy started during the Gulf War, when the civilian general counsel of the Army, William J. Haynes, clashed with the Army’s top military lawyer over whose office should control legal issues arising from the war (see June 1991-March 1992). Haynes is a protege of David Addington, the personal aide to Defense Secretary Dick Cheney, believes in concentrating power in the executive branch, and pressed for the change. Cheney attempted to have Congress implement the change, but the legislative branch refused; instead, Cheney has Atwood issue the order putting all military attorneys under White House control. [Savage, 2007, pp. 62]

The US Senate ratifies the international Convention Against Torture, originally proposed by the United Nations in 1985. The treaty bans any officials from signatory nations from inflicting “torture and other cruel, inhuman, or degrading treatment or punishment” on prisoners in order to gain information. It also establishes the UN Committee against Torture (UNCAT). The ban is absolute and cannot be waived: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.” [United Nations High Commissioner for Human Rights, 12/10/1984; Savage, 2007, pp. 155] The treaty also forbids signatory nations from sending detainees to other countries if there is a reasonable expectation that they may be tortured. [United Nations High Commissioner for Human Rights, 12/10/1984; Human Rights Web, 1/25/1997]

The Communications Assistance for Law Enforcement Act (CALEA) takes effect. CALEA obliges telecommunications providers such as AT&T to give law enforcement agencies and US intelligence organizations the ability to wiretap any domestic or international telephone conversations carried over their networks. In more recent years, the law will be expanded to give law enforcement and intelligence agencies similar abilities to monitor Internet usage by US citizens. [Federal Communications Commission, 2/21/2007]

President Clinton issues Executive Order 12949, which marginally extends the powers of the Justice Department to conduct warrantless surveillance of designated targets, specifically suspected foreign terrorists. Perhaps the most controversial aspect of the order comes in the first section, which reads, “Pursuant to section 302(a)(1) of the [Foreign Intelligence Surveillance] Act [FISA], the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.” [US President, 2/9/1995] As with then-president Jimmy Carter’s own May 1979 order extending the Justice Department’s surveillance capabilities (see May 23, 1979), after George W. Bush’s warrantless domestic wiretapping program will be revealed in December 2005 (see December 15, 2005), many of that program’s defenders will point to Clinton’s order as “proof” that Clinton, too, exercised unconstitutionally broad powers in authorizing wiretaps and other surveillance of Americans. These defenders will point to the “physical search” clause in Clinton’s order to support their contention that, if anything, Clinton’s order was even more egregrious than anything Bush will order. This contention is false. [50 U.S.C. 1802(a); Think Progress, 12/20/2005] Under FISA, the Attorney General must certify that any such physical search does not involve the premises, information, material, or property of a United States person.” That means US citizens or anyone inside the United States. Clinton’s order does not authorize warrantless surveillance or physical searches of US citizens. [US President, 2/9/1995; Think Progress, 12/20/2005]

President Clinton signs the Antiterrorism and Effective Death Penalty Act, which the New York Times calls “broad legislation that provides new tools and penalties for federal law-enforcement officials to use in fighting terrorism.” The Clinton administration proposed the bill in the aftermath of the Oklahoma City terrorist bombing (see 8:35 a.m. - 9:02 a.m. April 19, 1995). In many ways, the original bill will be mirrored by the USA Patriot Act six years later (see October 26, 2001). Civil libertarians on both the left and right opposed the legislation. Political analyst Michael Freeman called the proposal one of the “worst assaults on civil liberties in decades,” and the Houston Chronicle called it a “frightening” and “grievous” assault on domestic freedoms. Many Republicans opposed the bill, and forced a compromise that removed increased wiretap authority and lower standards for lawsuits against sellers of guns used in crimes. CNN called the version that finally passed the Republican-controlled Congress a “watered-down version of the White House’s proposal. The Clinton administration has been critical of the bill, calling it too weak. The original House bill, passed last month, had deleted many of the Senate’s anti-terrorism provisions because of lawmakers’ concerns about increasing federal law enforcement powers. Some of those provisions were restored in the compromise bill.” [CNN, 4/18/1996; New York Times, 4/25/1996; Roberts, 2008, pp. 35] An unusual coalition of gun rights groups such as the National Rifle Association (NRA) and civil liberties groups such as the American Civil Liberties Union (ACLU) led the opposition to the law. [New York Times, 4/17/1996] By the time Congress passed the bill, it had been, in the words of FBI Director Louis Freeh, “stripped… of just about every meaningful provision.” [Roberts, 2008, pp. 35] The law makes it illegal in the US to provide “material support” to any organization banned by the State Department. [Guardian, 9/10/2001]

The Communications Assistance for Law Enforcement Act (CALEA) forces broadband Internet service providers such as Vonage to retrofit their networks for government surveillance purposes. The prime beneficiary of that retrofitting is the FBI’s cutting-edge electronic surveillance system known as DCSNet (see 1997-August 2007 and After), which can now monitor those networks. DCSNet also seems capable of handling other cutting-edge technologies such as push-to-talk, peer-to-peer telephony systems such as Skype, caller-ID spoofing, and phone-number portability. [Wired News, 8/29/2007]

Some time after he is appointed CIA Director (see July 11, 1997), but before 9/11, George Tenet negotiates a series of agreements with telecommunications and financial institutions “to get access to certain telephone, Internet, and financial records related to ‘black’ intelligence operations.” The arrangements are made personally by the companies’ CEOs and Tenet, who plays “the patriot card” to get the information. The arrangement involves the CIA’s National Resources Division, which has at least a dozen offices in the US. The Division’s main aim is to recruit people in the US to spy abroad. However, in this case the Division makes arrangements so that other intelligence agencies, such as the NSA, can access the information and records the CEOs agree to provide. [Woodward, 2006, pp. 323-5] There is a history of co-operation between the CIA’s National Resources Division and the NSA. For example, Monte Overacre, a CIA officer assigned to the Division’s San Diego office in the early 1990s, said that he worked with the NSA there, obtaining information about foreign telecommunications programs and passing it on to the Technology Management Office, a joint venture between the two agencies. [Mother Jones, 1/1998] One US official will say that the arrangements only give the CIA access to the companies’ passive databanks. However, reporter Bob Woodward will say that the programme raises “serious civil liberties questions and also demonstrate[d] that the laws had not kept pace with the technology.” [Woodward, 2006, pp. 324-5] There will be an interagency argument about the program after 9/11 (see (2003 and After)).

Phil Zimmerman, the creator of the highly regarded “Pretty Good Privacy” (PGP) protocols, sounds an alarm about the 1994 Communications Assistance for Law Enforcement Act (CALEA), which mandated that telephone providers aid government wiretapping “by installing remote wiretap ports onto their digital switches so that the switch traffic would be available for snooping by law enforcement. After CALEA passed (see January 1, 1995), the FBI no longer had to go on-site with wiretapping equipment in order to tap a line—they could monitor and digitally process voice communications from the comfort of the home office.…CALEA opened up a huge can of worms….” Zimmerman writes, “A year after the CALEA passed, the FBI disclosed plans to require the phone companies to build into their infrastructure the capacity to simultaneously wiretap 1 percent of all phone calls in all major US cities. This would represent more than a thousandfold increase over previous levels in the number of phones that could be wiretapped. In previous years, there were only about a thousand court-ordered wiretaps in the United States per year, at the federal, state, and local levels combined. It’s hard to see how the government could even employ enough judges to sign enough wiretap orders to wiretap 1 percent of all our phone calls, much less hire enough federal agents to sit and listen to all that traffic in real time. The only plausible way of processing that amount of traffic is a massive Orwellian application of automated voice recognition technology to sift through it all, searching for interesting keywords or searching for a particular speaker’s voice. If the government doesn’t find the target in the first 1 percent sample, the wiretaps can be shifted over to a different 1 percent until the target is found, or until everyone’s phone line has been checked for subversive traffic. The FBI said they need this capacity to plan for the future. This plan sparked such outrage that it was defeated in Congress. But the mere fact that the FBI even asked for these broad powers is revealing of their agenda.” [Ars Technica, 12/20/2005]

Bush’s chief of staff, Andrew Card, directs federal agencies to freeze more than 300 pending regulations issued by the administration of Bill Clinton. The regulations affect areas ranging from health and safety to the environment and industry. The delay, Card says, will “ensure that the president’s appointees have the opportunity to review any new or pending regulations.” The process expressly precludes input from average citizens. Inviting such comments, agency officials conclude, would be “contrary to the public interest.” Almost all of the regulations are later overturned. [US News and World Report, 12/23/2003]

Congress explicitly refuses to grant the Bush administration the authority to conduct warrantless wiretaps and surveillance operations against US citizens in its resolution authorizing the use of military force (AUMF) against terrorists (see September 14-18, 2001). Tom Daschle (D-SD), the Senate Majority Leader, will write in December 2005 (after his ouster from Congress in November 2004) that the White House and the Justice Department will claim, falsely, that the AUMF grants the right for the NSA to conduct such a program (see Early 2002 and December 15, 2005). Instead, Daschle will write, the NSA merely usurps the authority, with the president’s approval, to conduct such an extralegal surveillance program (see December 21-22, 2005). [Washington Post, 12/22/2005]Administration Efforts to Rewrite AUMF - In an op-ed for the Washington Post, Daschle will observe that the AUMF authorizes Bush “to use all necessary and appropriate force against those nations, organizations or persons” who “planned, authorized, committed or aided” the 9/11 attacks. But, Daschle will write, “Literally minutes before the Senate cast its vote, the administration sought to add the words ‘in the United States and’ after ‘appropriate force’ in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.” No Vote for Domestic Surveillance - Daschle will also write that the White House attempted to add draft language to the AUMF resolution that would give the administration new and sweeping authority to use force to “deter and pre-empt any future acts of terrorism or aggression against the United States,” even against nations and organizations not responsible for the 9/11 attacks. Bush officials such as Vice President Dick Cheney will claim that the AUMF “granted authority by the Congress to use all means necessary to take on the terrorists, and that’s what we’ve done.” But Daschle will write that Cheney is mistaken. “As Senate majority leader at the time, I helped negotiate that law with the White House counsel’s office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance.” On September 12, six days before the September 18 AUMF vote, Bush officials demand that Congress authorize the use of military force to, in their words, “deter and pre-empt any future acts of terrorism or aggression against the United States.” But Congress refuses, feeling that the request is “too broad and ill defined.” Instead, on September 14, Congress choses to use language that authorizes Bush to use “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the 9/11 attacks. Daschle later writes, “With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al-Qaeda.… The shock and rage we all felt in the hours after the attack were still fresh. America was reeling from the first attack on our soil since Pearl Harbor. We suspected thousands had been killed, and many who worked in the World Trade Center and the Pentagon were not yet accounted for. Even so, a strong bipartisan majority could not agree to the administration’s request for an unprecedented grant of authority.” Instead, Daschle will write, the administration simply takes the authority anyway, and will argue in hindsight that the AUMF actually gives the administration the right to wiretap US citizens. However, Daschle will write, “at the time, the administration clearly felt they [didn’t have the authority] or it wouldn’t have tried to insert the additional language.” Breeding 'Fear and Suspicion' - He concludes, “[T]here are right and wrong ways to defeat terrorists, and that is a distinction this administration has never seemed to accept. Instead of employing tactics that preserve Americans’ freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion. If the stories in the media over the past week are accurate [detailing the breadth and apparent illegality of the NSA program], the president has exercised authority that I do not believe is granted to him in the Constitution, and that I know is not granted to him in the law that I helped negotiate with his counsel and that Congress approved in the days after Sept. 11. For that reason, the president should explain the specific legal justification for his authorization of these actions, Congress should fully investigate these actions and the president’s justification for them, and the administration should cooperate fully with that investigation. In the meantime, if the president believes the current legal architecture of our country is insufficient for the fight against terrorism, he should propose changes to our laws in the light of day. That is how a great democracy operates. And that is how this great democracy will defeat terrorism.” [Washington Post, 12/23/2005]

The US Congress adopts a joint resolution, the Authorization for Use of Military Force (AUMF), that determines that “the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Congress also states that the “grave acts of violence” committed on the US “continue to pose an unusual and extraordinary threat to [its] national security and foreign policy.” [US Congress, 9/14/2001] President Bush signs the resolution into law on September 18. [White House, 9/18/2001] The passage of the AUMF served another purpose: to extend presidential power. While the Defense Department and the Joint Chiefs of Staff intended the AUMF to define the conflict in narrow terms, and authorize the US to move militarily against al-Qaeda and its confederates, and the Taliban, Vice President Dick Cheney and his chief of staff, David Addington, had a larger goal. Attorney Scott Horton, who has written two major studies on interrogation of terrorism suspects for the New York City Bar Association, says in 2005 that Cheney and Addington “really wanted [the AUMF defined more broadly], because it provided the trigger for this radical redefinition of presidential power.” Addington helped draft a Justice Department opinion in late 2001, written by lawyer John Yoo (see Late September 2001), that asserted Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response.” [US News and World Report, 5/21/2006]

The CIA begins a program to kill or capture al-Qaeda leaders using small teams of its paramilitary forces. [New York Times, 7/14/2009; Washington Post, 8/20/2009] The aim is to take out of circulation members of al-Qaeda and its affiliates who are judged to be plotting attacks against US forces or interests. The program’s establishment follows its proposal by an official at the CIA’s Counterterrorist Center (see Shortly After September 11, 2001) and official approval from the White House (see September 17, 2001). The program, initially run by the Counterterrorist Center, never becomes operational at the agency and no targets are ever proposed for the White House’s approval; although the CIA will both capture and kill several al-Qaeda leaders over the next few years (see, for example, February 29 or March 1, 2003 and December 1, 2005), these successes result from ad hoc operations or other programs. However, the Pentagon will later begin a parallel program that does kill and capture al-Qaeda leaders (see July 22, 2002). Although the CIA’s program is never used, it is, according to CIA spokesman George Little, “much more than a PowerPoint presentation.” [New York Times, 7/14/2009; Washington Post, 8/20/2009] Another official adds: “It’s wrong to think this counterterrorism program was confined to briefing slides or doodles on a cafeteria napkin. It went well beyond that.” [New York Times, 8/20/2009] Top CIA officials are briefed periodically about the program’s progress. [New York Times, 7/14/2009] The program is intended for use in Afghanistan and Iraq, as well as other countries. [New York Times, 7/14/2009; Washington Post, 8/20/2009] Reasons for its non-use include logistical, legal, and diplomatic hurdles. [New York Times, 8/20/2009] There are three versions of the program: an initial one done in house, another one operated by the private military contractor Blackwater (see 2004), and another, possibly after Blackwater leaves the program (see (2005-2006)). The total spending on the program is under $20 million over eight years. [Washington Post, 8/20/2009] There is a US government ban on assassinating people. However, the Bush administration takes the position that killing members of al-Qaeda, a terrorist group that attacked the US and has pledged to attack it again, is no different from killing enemy soldiers in battle, so the CIA is not constrained by the ban. [New York Times, 7/14/2009; New York Times, 8/20/2009]

Tom Ridge.
[Source: US State Department]President Bush announces the new cabinet-level Office of Homeland Security, to be led by Pennsylvania Governor Tom Ridge. [Associated Press, 8/19/2002] Accepting the post, Ridge says, “Liberty is the most precious gift we offer our citizens.” Responding to this comment, the Village Voice opines, “Could Tom Ridge have said anything scarier or more telling as he accepted the post of homeland security czar? Trying to strike the bell of liberty, he sounds its death knell, depicting government not as the agent of the people’s will, but as an imperious power with the authority to give us our democratic freedoms. Which means, of course, that it can also take them away.” [Village Voice, 9/11/2002] In November 2002, Ridge will become secretary of a new Homeland Security Department (see November 25, 2002).

It is reported that Attorney General John Ashcroft and his Justice Department is assuming control of all terrorism-related prosecutions from the US Attorney’s office in New York, which has had a highly successful record of accomplishment in prosecuting cases connected to bin Laden. 15 of the 22 suspects listed on a most wanted terrorism list a month after 9/11 had already been indicted by the New York office in recent years. A former federal prosecutor says of the New York office, “For eight years, they have developed an expertise in these prosecutions and the complex facts that surround these groups. If ever there was a case where you’d want to play to your strength, this is it.” [New York Times, 10/11/2001] A grand jury in the New York district began investigating the 9/11 attacks one week after 9/11. But media accounts of this grand jury’s activity stop by late October 2001 and there appears to be no other grand jury taking its place (see September 18, 2001).

John Yoo, a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, and OLC special counsel Robert Delahunty issue a joint memo to White House counsel Alberto Gonzales. The memo claims that President Bush has sweeping extraconstitutional powers to order military strikes inside the US if he says the strikes are against suspected terrorist targets. In the days following the 9/11 attacks, Gonzales asked if Bush could legally order the military to combat potential terrorist activity within the US. The memo is first revealed to exist seven years later (see April 2, 2008) after future OLC head Steven Bradbury acknowledges its existence to the American Civil Liberties Union; it will be released two months after the Bush administration leaves the White House (see March 2, 2009). [US Department of Justice, 10/23/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009]Granting Extraordinary, Extraconstitutional Authority to Order Military Actions inside US - Yoo and Delahunty’s memo goes far past the stationing of troops to keep watch at airports and around sensitive locations. Instead, the memo says that Bush can order the military to conduct “raids on terrorist cells” inside the US, and even to seize property. “The law has recognized that force (including deadly force) may be legitimately used in self-defense,” they write. In 2009, Reuters will write, “The US military could have kicked in doors to raid a suspected terrorist cell in the United States without a warrant” under the findings of the OLC memo. “We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant,” Yoo and Delahunty write. [US Department of Justice, 10/23/2001 ; New York Times, 3/2/2009; Reuters, 3/2/2009] The memo reasons that since 9/11, US soil can be legally construed as being a battlefield, and Congress has no power to restrict the president’s authority to confront enemy tactics on a battlefield. [Savage, 2007, pp. 131]No Constitutional or Other Legal Protections - “[H]owever well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy. [Rather,] the Fourth Amendment does not apply to domestic military operations designed to deter and prevent foreign terrorist attacks.” Any objections based on the Fourth Amendment’s ban on unreasonable search and seizures would be invalid since whatever possible infringement on privacy would be trumped by the need to protect the nation from injury by deadly force. The president is “free from the constraints of the Fourth Amendment.” The Posse Comitatus Act, which bars the military from operating inside the US for law enforcement purposes, is also moot, the memo says, because the troops would be acting in a national security function, not as law enforcement. [US Department of Justice, 10/23/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009; Reuters, 3/2/2009; Ars Technica, 3/2/2009] There are virtually no restrictions on the president’s ability to use the military because, Yoo and Delahunty write, the nation is in a “state of armed conflict.” The scale of violence, they argue, is unprecedented and “legal and constitutional rules” governing law enforcement, even Constitutional restrictions, no longer apply. The US military can be used for “targeting and destroying” hijacked airplanes, they write, or “attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be.” The memo says, “Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, or searching for suspects.” [Newsweek, 3/2/2009] Yoo writes that the Justice Department’s criminal division “concurs in our conclusion” that federal criminal laws do not apply to the military during wartime. The criminal division is headed by Michael Chertoff, who will become head of the Department of Homeland Security. [Washington Post, 4/4/2008]Sweeping Away Constitutional Rights - Civil litigator Glenn Greenwald will later note that the memo gives legal authorization for President Bush to deploy the US military within US borders, to turn it against foreign nationals and US citizens alike, and to render the Constitution’s limits on power irrelevant and non-functional. Greenwald will write, “It was nothing less than an explicit decree that, when it comes to presidential power, the Bill of Rights was suspended, even on US soil and as applied to US citizens.” Justifying Military Surveillance - Greenwald will note that the memo also justifies the administration’s program of military surveillance against US citizens: “[I]t wasn’t only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls ‘domestic military operations’ was, among other things, the basis on which Bush ordered the NSA, an arm of the US military, to turn inwards and begin spying—in secret and with no oversight—on the electronic communications (telephone calls and emails) of US citizens on US soil” (see December 15, 2005 and Spring 2004). “If this isn’t the unadorned face of warped authoritarian extremism,” Greenwald will ask, “what is?” [Salon, 3/3/2009] If the president decides to use the military’s spy agency to collect “battlefield intelligence” on US soil, no law enacted by Congress can regulate how he goes about collecting that information, including requiring him to get judicial warrants under the Foreign Intelligence Surveillance Act (FISA). In 2007, Yoo will say in an interview: “I think there’s a law greater than FISA, which is the Constitution, and part of the Constitution is the president’s commander in chief power. Congress can’t take away the president’s powers in running war.” [Savage, 2007, pp. 131; PBS Frontline, 5/15/2007] Cheney and Addington will push the NSA to monitor all calls and e-mails, including those beginning and ending on US soil, but the NSA will balk. Domestic eavesdropping without warrants “could be done and should be done,” Cheney and Addington argue, but the NSA’s lawyers are fearful of the legal repercussions that might follow once their illegal eavesdropping is exposed, with or without the Justice Department’s authorization. The NSA and the White House eventually reach a compromise where the agency will monitor communications going in and out of the US, but will continue to seek warrants for purely domestic communications (see Spring 2001, After September 11, 2001, and October 2001). [Savage, 2007, pp. 131]Military Use Considered - In 2009, a former Bush administration lawyer will tell a reporter that the memo “gave rise to the Justice Department discussing with the Defense Department whether the military could be used to arrest people and detain people inside the United States. That was considered but rejected on at least one occasion.” The lawyer will not give any indication of when this will happen, or to whom. Under the proposal, the suspects would be held by the military as “enemy combatants.” The proposal will be opposed by the Justice Department’s criminal division and other government lawyers and will ultimately be rejected; instead, the suspects will be arrested under criminal statutes. [Los Angeles Times, 3/3/2009]

The Justice Department’s John Yoo and Robert Delahunty issue a memo to White House counsel Alberto Gonzales claiming President Bush has sweeping powers in wartime that essentially void large portions of the Constitution. The memo, which says that Bush can order military operations inside the US (see October 23, 2001), also says that Bush can suspend First Amendment freedoms: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.” [American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009]

The Justice Department issues a regulation that allows eavesdropping on attorney-client conversations in federal prisons wherever there is “reasonable suspicion… to believe that a particular inmate may use communications with attorneys to further or facilitate acts of terrorism.” The regulation requires written notice to the inmate and attorney, “except in the case of prior court authorization.” Officials no longer have to show probable cause or get a court order. The Los Angeles Times says the new policy is “sharply criticized by a broad array of lawyers and lawmakers.” [Los Angeles Times, 11/10/2001; San Francisco Chronicle, 11/12/2001]

George W. Bush signs Executive Order 13233 which limits public access to papers of all presidents since 1980. A 1978 law provided for the release of presidential papers 12 years after the president leaves office, so Ronald Reagan’s papers would have been released next year. Reagan issued an order in 1989 that called for disclosure of most of his official papers 12 years after he left office but under the new executive order the papers can be kept secret even if the president in question wants them released. President Bush’s father was vice president during the Reagan administration. [Seattle Post-Intelligencer, 11/8/2001] The Guardian notes that now Bush’s “personal papers detailing the decision-making process in the current war on terrorism could remain secret in perpetuity.” [Guardian, 11/2/2001] In March 2001, Bush signed a temporary order delaying the release of these papers for 90 days, and then signed for another 90 day delay before signing this order making the change permanent (see January 20, 2001). [New York Times, 1/3/2003]'Executive Fiat' - Bush’s executive order radically reforms the PRA and unilaterally imposes limitations never contemplated by Congress. Bush is, according to former Nixon White House counsel John Dean, “in essence… repealing an act of Congress and imposing a new law by executive fiat.” If not overturned by Congress or lawsuits, the executive order mandates the following, according to Dean: Former presidents can keep their papers sealed indefinitely. Vice presidents have the power to invoke executive privilege, an authority limited to the president since 1969. The burden shifts from a presumption to release presidential documents unless good cause exists to keep them sealed, to the opposite, where an applicant must show good cause why a set of documents should be unsealed. Any request to release a former president’s papers must be approved by both the former president and the current incumbent. Either one’s objection keeps the papers sealed. “Representatives of former presidents” may invoke executive privilege after a former president’s death. Dean will write, “Although there is no constitutional basis whatsoever for this, under Bush’s order such a right can be passed from generation to generation, to friends, anyone.” Tom Connors of the Society of American Archivists will say, “What seems to be coming out of the [Bush-Cheney] administration is the idea that public information is a dangerous thing.” Historian Hugh Davis Graham, who will, before his death, take part in a lawsuit to overturn the order, will observe, “George W. Bush has a fetish for secrecy. And unless this executive order is overturned, it will be a victory for secrecy in government—a victory so total that it would make [former president Richard] Nixon jealous in his grave.” Dean will add, “Bush and Cheney assumed office planning to take total and absolute control of executive branch information. The truth will be what they say it is. They will decide what the public should know and when, if ever.” [Dean, 2004, pp. 89-92]

Patrick Philbin, an attorney with the Justice Department’s Office of Legal Counsel, writes a lengthy and detailed memo arguing that the president may establish so-called “military commissions” for the trial and disposition of terror suspects without involvement in the US criminal justice system. Furthermore, Philbin opines, the president may do so without the approval or even the knowledge of Congress. [US Department of Justice, 11/6/2001 ; American Civil Liberties Union [PDF], 1/28/2009 ] Philbin’s central argument is that 9/11 was an act of war, not a crime, and therefore the attacks triggered the president’s full array of war powers, including the inherent authority to create military commissions. Philbin cites a 1942 case where then-President Roosevelt created a military commission to try eight Nazi saboteurs captured inside the US during the first year of America’s involvement in World War II (see 1942); even though the Supreme Court backed Roosevelt, he felt unsure of the legality of such commissions, and did not use them in later trials of captured saboteurs. Since World War II, the laws of war have undergone drastic revisions, with Congress enacting the Uniform Code of Military Justice (UCMJ), which said that if military commissions were ever to be used again, they should use, as much as is practical, the same procedures and defendant rights as are found in military courts-martial. The Senate had also ratified the 1949 Geneva Conventions, which granted all wartime prisoners the right to a fair trial. Philbin’s memo ignores everything except the 1942 military commissions, and argues that if the president has the inherent and exclusive right to set up military commissions, as the Supreme Court had found, then Congress has no authority to restrict that right. [Savage, 2007, pp. 136-137]

William J. Haynes. [Source: US Defense Department]William J. Haynes, Defense Secretary Donald Rumsfeld’s general counsel, shows a draft of a presidential order establishing military commissions to Colonel Lawrence J. Morris, a judge advocate general (JAG) attorney with strong experience in military justice and the laws of war. Morris heads a Pentagon legal team that has so far been excluded from the discussion on how suspected terrorists should be prosecuted. Col. Morris is given just 30 minutes to read the draft but is not allowed to keep a copy or even take notes. The next day, the Army’s Judge Advocate General, Major General Thomas J. Romig, hastily convenes a meeting of Pentagon lawyers to prepare suggestions for improvement, with an eye on bringing the order closer to existing military legal standards. The final order, however, includes none of the lawyer’s recommendations. “They hadn’t changed a thing,” a military official will later recall. [New York Times, 10/24/2004; Savage, 2007, pp. 138]

Justice Department lawyer John Yoo, an official with the Office of Legal Counsel (OLC), issues a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but its existence will be revealed in a June 2007 deposition filed in the course of an American Civil Liberties Union (ACLU) lawsuit. The memo is known to cover the War Crimes Act, the Hague Convention, the Geneva Conventions, the federal criminal code, and detainee treatment. [American Civil Liberties Union [PDF], 1/28/2009 ] It is co-authored by OLC special counsel Robert Delahunty. [ProPublica, 4/16/2009]

It is reported that in the wake of 9/11, Attorney General John Ashcroft has prevented the FBI from investigating gun-purchase records to discover if any of the hundreds arrested or suspected since 9/11 had bought any guns. The White House supports him, saying they have no intention of changing the law to clarify the FBI’s ability to search gun-purchase records. [CNN, 12/6/2001; New York Times, 12/6/2001] A spokesman for The International Association of Chiefs of Police, the largest group of law enforcement executives in the US, says, “This is absurd and unconscionable. The decision has no rational basis in public safety. It sounds to me like it was made for narrow political reasons based on a right-to-bear-arms mentality.” [New York Times, 12/6/2001] There were reports that the 9/11 hijackers on at least Flight 11 and Flight 93 used guns in the hijacking (see (8:20 a.m.) September 11, 2001 and 9:27 a.m. September 11, 2001).

The Justice Department’s John Yoo sends a classified memo to the Defense Department’s general counsel, William Haynes. The contents will not be made public, but the American Civil Liberties Union (ACLU) will eventually learn that the memo concerns possible criminal charges to be brought against an American citizen who is suspected of being a member of either al-Qaeda or the Taliban. The ACLU believes the memo discusses the laws mandating that US military personnel must adhere to the Uniform Code of Military Justice, and how those laws may not apply to military personnel during a so-called “undeclared war.” [American Civil Liberties Union [PDF], 1/28/2009 ]

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 ]

Vice President Dick Cheney tells the CIA not to brief Congress about an agency program to kill and capture al-Qaeda leaders (see Shortly After September 17, 2001). Two reasons will be given for withholding the information. One is that the program never becomes operational. [New York Times, 7/12/2009; New York Times, 7/14/2009; Washington Post, 8/20/2009; New York Times, 8/20/2009] The other is that the agency already has legal authority to kill al-Qaeda leaders (see September 17, 2001). [New York Times, 8/20/2009] According to the New York Times, Cheney’s instruction to keep the program secret suggests “that the Bush administration had put a high priority on the program and its secrecy.” [New York Times, 7/12/2009] The fact that the program is never briefed to Congress until it is cancelled in 2009 (see June 24, 2009) will cause controversy after it becomes public knowledge, and the House Intelligence Committee will investigate whether it was a breach of the law (see Before August 20, 2009). The law is apparently unclear on whether this program should be briefed, as it requires the president to make sure the House and Senate intelligence committees “are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity.” However, such briefings should be done “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” House Intelligence Committee member Peter Hoekstra (R-MI) will later say that Congress would have approved of the program only in what the New York Times calls “the angry and panicky days after 9/11, on 9/12,” but not later, after fears and tempers had begun to cool. [New York Times, 7/12/2009]

The Justice Department’s Patrick Philbin sends a classified memo to Attorney General John Ashcroft. The memo’s contents will not be divulged, but the American Civil Liberties Union (ACLU) will later learn that it regards Ashcroft’s review of the Terrorist Surveillance Program (TSP—see March 2002). [American Civil Liberties Union [PDF], 1/28/2009 ] The memo contains a legal review by Ashcroft of President Bush’s order authorizing the TSP, the Bush administration’s name for its warrantless wiretapping program. The review is requested before one of the 45-day reauthorizations by the president as required by law. [ProPublica, 4/16/2009]

Justice Department lawyer John Yoo sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions. [American Civil Liberties Union [PDF], 1/28/2009 ]

Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents will never be divulged, but the American Civil Liberties Union (ACLU) will later learn that it regards the authority of the OLC, the attorney general, the Justice Department, and the State Department in interpreting treaties and international law. [American Civil Liberties Union [PDF], 1/28/2009 ]

Justice Department lawyers John Yoo and Robert Delahunty send a classified memo to the chief legal adviser for the State Department, William Howard Taft IV. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Justice Department’s interpretation of the War Crimes Act. According to Yoo and Delahunty, the War Crimes Act does not allow the prosecution of accused al-Qaeda and Taliban suspects. Yoo will cite this memo in a 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [American Civil Liberties Union [PDF], 1/28/2009 ]

Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), and OLC lawyer John Yoo send a memo to White House counsel Alberto Gonzales and Defense Department chief counsel William Haynes. Known as the “Treaties and Laws Memorandum,” the document addresses the treatment of detainees captured in Afghanistan, and their eventual incarceration at Guantanamo and possible trial by military commissions. The memo asserts that the Geneva Conventions do not apply to al-Qaeda detainees, and the president has the authority to deny Taliban members POW status. The document goes on to assert that the president is not bound by international laws such as the Geneva Conventions because they are neither treaties nor federal laws. [US Department of Justice, 1/22/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ]

John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions and is applicable to prisoners of war. Yoo’s boss, OLC head Jay Bybee, sends another secret memo about the Geneva Conventions to Deputy Attorney General Larry Thompson. [American Civil Liberties Union [PDF], 1/28/2009 ]

A memorandum sent by the Justice Department to Department of Defense General Counsel William J. Haynes states that the military commissions intended to try enemy combatants are “entirely creatures of the president’s authority as commander in chief… and are part and parcel of the conduct of a military campaign.” [Office of Assistant Attorney General, 2/26/2002 ] This raises questions regarding the independence of the commissions. The US government will try the detainees itself, which is why Human Rights Watch later concludes, “Under the rules, the president, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner.” [Human Rights Watch, 1/9/2004] Amnesty International will similarly criticize the fact that “the commissions will lack independence.” [Amnesty International, 10/27/2004] Trial by a court that is not in complete independence from a government acting as a prosecutor is a violation of the defendants’ human rights. Article 14(1) ICCPR [International Covenant on Civil and Political Rights] states: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” Article 14(5) ICCPR furthermore grants “[e]verybody convicted of a crime… the right to his conviction and sentence being reviewed by a higher tribunal according to law.” But in the plans of the US government such a right is not foreseen. According to Human Rights Watch, “There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the US military justice system.” [Human Rights Watch, 1/9/2004] The Justice Department memorandum advises that “incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda.” The “Miranda warnings” are normally a prerequisite for allowing incriminating declarations by a defendant to the proceedings of a criminal trial.

Deputy Assistant Attorney General Joan Larsen and Gregory Jacob, an attorney-adviser to the Office of Legal Counsel (OLC), send a classified memo to lawyers in the Justice Department’s civil division. The memo will remain secret, but the American Civil Liberties Union (ACLU) will learn that it regards the availability of habeas corpus protections to detainees captured in the US’s “war on terror.” [American Civil Liberties Union [PDF], 1/28/2009 ] The memo asserts that detainees have no habeas corpus protections, and therefore cannot challenge their detentions in US courts, despite multiple Supreme Court rulings to the contrary. [ProPublica, 4/16/2009]

Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo to William Howard Taft IV, the chief counsel of the State Department, titled “The President’s Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations.” The memo, actually written by Bybee’s deputy John Yoo, says Congress has no authority to block the president’s power to unilaterally transfer detainees in US custody to other countries. In essence, the memo grants President Bush the power to “rendition” terror suspects to countries without regard to the law or to Congressional legislation, as long as there is no explicit agreement between the US and the other nations to torture the detainees. [US Department of Justice, 3/12/2002 ; Savage, 2007, pp. 148; American Civil Liberties Union [PDF], 1/28/2009 ; New York Times, 3/2/2009] The memo directly contradicts the 1988 Convention Against Torture (see October 21, 1994), which specifically forbids the transfer of prisoners in the custody of a signatory country to a nation which practices torture. Once the treaty was ratified by Congress in 1994, it became binding law. But Yoo and Bybee argue that the president has the authority as commander in chief to ignore treaties and laws that supposedly interfere with his power to conduct wartime activities. [Savage, 2007, pp. 148-149] In 2009, when the memos are made public (see March 2, 2009), Jennifer Daskal of Human Rights Watch says she is shocked at the memo: “That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured. The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do.” [Washington Post, 3/3/2009]

In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. [Associated Press, 4/10/2008]Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners. The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” [MSNBC, 4/10/2008] A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. [Associated Press, 4/10/2008]Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.” Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008]

Attorney General Ashcroft relaxes decades-old rules limiting government agents from monitoring domestic religious and political groups. Now, FBI agents can attend political rallies or religious meetings without evidence of a crime or advance approval from superiors. The new rules also permit the FBI to broadly search or monitor the internet for evidence of criminal activity without having any tips or leads that a specific criminal act has been committed. [Philadelphia Inquirer, 5/31/2002]

In a memo to Attorney General John Ashcroft, Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), says that the US has the absolute right to detain US citizen Jose Padilla without charge and without legal representation (see May 8, 2002). Bybee also claims that the Posse Comitatus Act, which prevents the US military from operating inside the US itself, “poses no bar to the military’s operations in detaining Padilla.” [US Department of Justice, 6/8/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The day after this memo is issued, Padilla is classified as an “enemy combatant” and transferred to the US Naval Brig in Charleston, South Carolina (see June 9, 2002).

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to Daniel J. Bryant, another OLC lawyer. Yoo concludes that the Constitution “vests full control of the military operations of the United States to the president,” and denies Congress any role in overseeing or influencing such operations. The memo is consisent with an earlier Justice Department memo (see April 8, 2002). Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice`, 6/27/2002 ; American Civil Liberties Union [PDF], 1/28/2009 ] The memo ignores the Non-Detention Act, which states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” [ProPublica, 4/16/2009] It will be made public in early 2009 (see March 2, 2009).

Military lawyers for a detainee believed to be Abu Zubaida (see March 28, 2002) lodge numerous complaints with unidentified White House officials over the torture of their client. Zubaida has been subjected to waterboarding and other abuses by CIA interrogators (see March 28, 2002-Mid-2004, March 28-August 1, 2002, Mid-April-May 2002, Mid-April 2002, and Mid-May 2002 and After). The complaints trigger a hastily arranged meeting between Vice President Cheney, White House counsel Alberto Gonzales, Cheney’s chief counsel David Addington, National Security Adviser Condoleezza Rice, and a number of officials from the Defense and State Departments. The discussion centers on the production of a legal memo specifically for the CIA that would provide retroactive legal immunity for the use of waterboarding and other illegal interrogation methods. According to a subsequent investigation by the Justice Department (see February 22, 2009), the participants in the discussion believe that the methods used against Zubaida are legal because on February 7, 2002, President Bush signed an executive order stating that terrorists were not entitled to protections under the Geneva Conventions (see February 7, 2002). Nevertheless, the participants agree that methods such as waterboarding probably violate international and domestic laws against torture, and therefore the CIA and the Bush administration would both benefit from a legal opinion stating what techniques are legal, and why they do not fit the legal definition of torture. The meeting results in the production of the so-called “Golden Shield” memo (see August 1, 2002). [Public Record, 2/22/2009]

Jay Bybee. [Source: Public domain]The Justice Department’s Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [US Department of Justice, 8/1/2002 ] This memo will later be nicknamed the “Golden Shield” by insiders in the hopes that it will protect government officials from later being charged with war crimes (see April 2002 and After). [ABC News, 4/9/2008]Multiple Authors - The 50-page “torture memo” is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. It is later revealed that Yoo authored the memo himself, in close consultation with Vice President Cheney’s chief adviser David Addington, and Bybee just signed off on it (see December 2003-June 2004). [Washington Post, 6/9/2004] Deputy White House counsel Timothy Flanigan also contributed to the memo. Addington contributed the claim that the president may authorize any interrogation method, even if it is plainly torture. Addington’s reasoning: US and treaty law “do not apply” to the commander in chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/25/2007]Statute Only Prohibits 'Extreme Acts' - Gonzales had formally asked for the OLC’s legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004]Torture Legal and Defensible - Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo’s view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president’s detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004]Protecting US Officials from Prosecution - In 2007, author and reporter Charlie Savage will write: “In case an interrogator was ever prosecuted for violating the antitorture law (see October 21, 1994 and January 26, 1998, Yoo laid out page after page of legal defenses he could mount to get the charges dismissed. And should someone balk at this strained interpretation of the law, Yoo offered his usual trump card: Applying the antitorture law to interrogations authorized by the president would be unconstitutional, since only the commander in chief could set standards for questioning prisoners.” [Savage, 2007, pp. 155-156]Virtually Unrestricted Authority of President - “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003)—ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004]Ashcroft Refuses to Release Memo - After the memo’s existence is revealed, Attorney General John Ashcroft denies senators’ requests to release it, and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [New York Times, 6/8/2004; Bloomberg, 6/8/2004; Washington Post, 6/9/2004] Privately, Ashcroft is so irritated by Yoo’s hand-in-glove work with the White House that he begins disparagingly referring to him as “Dr. Yes.” [New York Times, 10/4/2007]Only 'Analytical' - Responding to questions about the memo, White House press secretary Scott McClellan will claim that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Bybee. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House counsel from 1999-2001, will tell reporters. This view is confirmed by another former Office of Legal Counsel lawyer who says that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office’s head are considered legally binding. [Washington Post, 6/9/2004]Memo Will be Withdrawn - Almost two years later, the OLC’s new head, Jack Goldsmith, will withdraw the torture memos, fearing that they go far beyond anything countenanced by US law (see December 2003-June 2004). Memo Addresses CIA Concerns - The administration, particularly the axis of neoconservatives centered around Cheney’s office, has enthusiastically advocated the use of violent, abusive, and sometimes tortuous interrogation techniques, though the US has never endorsed such tactics before, and many experts say such techniques are counterproductive. The CIA, responding to the desires from the White House, hastily put together a rough program after consulting with intelligence officials from Egypt and Saudi Arabia, where detainees are routinely tortured and killed in captivity, and after studying methods used by former Soviet Union interrogators. The legal questions were continuous. The former deputy legal counsel for the CIA’s Counterterrorist Center, Paul Kelbaugh, recalls in 2007: “We were getting asked about combinations—‘Can we do this and this at the same time?… These approved techniques, say, withholding food, and 50-degree temperature—can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’” The “torture memo” is designed to address these concerns. [New York Times, 10/4/2007]

The state of Florida settles a voter discrimination suit filed by the National Association for the Advancement of Colored People (NAACP) in the wake of allegations of massive and widespread discrimination during the November 2000 elections (see November 7, 2000 and April 24, 2001). The class-action suit charged Database Technologies (DBT), a private firm hired by the Florida government, and Florida Secretary of State Katherine Harris with deliberately attempting to disenfranchise black voters. Florida agrees to provisions that nominally settle the problem, but by 2004 will have implemented virtually none of the corrective procedures mandated by the settlement. Miami-Dade, Broward, Leon, Volusia, and Duval Counties settled earlier rather than face trial. [Center for American Progress, 12/9/2010]

Civil rights division logo. [Source: US Department of Justice]The Bush administration embarks on a program to politicize the Justice Department’s civil rights division (CRD). The CRD is staffed by some 350 permanently employed lawyers who take complaints, investigate problems, propose lawsuits, litigate cases, and negotiate settlements. For decades, the decisions on who should fill these positions have been made by civil servants and not by political appointees. The CRD is an obvious target for politicization, and until now the Justice Department has tried to ensure that no such politicization ever took place. “There was obviously oversight from the front office [where the political appointees work], but I don’t remember a time when an individual went through that process and was not accepted,” Charles Cooper, a former lawyer in the CRD during the Reagan administration, will later recall. “I just don’t think there was any quarrel with the quality of individuals who were being hired. And we certainly weren’t placing any kind of political litmus test on… the individuals who were ultimately determined to be best qualified.” Hiring Conservatives in Place of Career Lawyers - But Attorney General John Ashcroft changes those rules, without making any sort of official announcement. The hiring committee is not formally disbanded, but it stops having meetings scheduled, and the political appointees begin making career hiring decisions. In 2007, author and reporter Charlie Savage will write, “The result of the unprecedented change was a quiet remaking of the civil rights division, effectively turning hundreds of career jobs into politically appointed positions.” No longer would career attorneys be hired for their civil rights background; instead, lawyers from conservative law schools or from conservative legal organizations such as the Republican National Lawyers Association are given favorable treatment. Some of the new hires worked with Kenneth Starr’s Whitewater investigative team or had worked with other prominent conservatives, including former Attorney General Edwin Meese or Senator Trent Lott (R-MO). Some list themselves as belonging to prominent Christian political organizations that promote socially conservative views such as opposition to abortion and to affirmative action. Shift towards 'Reverse Discrimination' Cases - After the new hires are in place, the division shifts its focus: instead of working on voter rights, employment discrimination, and other such cases affecting African-Americans and Hispanics, the division begins working to develop “reverse discrimination” cases in favor of whites and Christians. [Savage, 2007, pp. 295-297]Driving Career Employees Away - Over the next few years, the types of cases pursued by the CRD changes drastically (see 2005, 2006, and 2006), and career attorneys with decades of service begin leaving the division in large numbers. The Justice Department will even encourage older hires to leave by offering them a buyout. Savage will write, “With every new vacancy, the administration gained a new change to use the new rules to hire another lawyer more in line with its political agenda.” CRD attorney David Becker will tell a 2006 NAACP hearing: “Even during other administrations that were perceived as being hostile to civil rights enforcement, career staff did not leave in numbers approaching this level. In the place of those experienced litigators and investigators, this administration has, all too often, hired inexperienced ideologues, virtually none of which have any civil rights or voting rights experience.” Some supporters say that the Bush administration is merely righting an imbalance, where the CRD was previously top-heavy with liberal lawyers interested in protecting African-Americans over other groups, but one of the CRD’s top career lawyers from 1965 through 1994, Jim Turner, says, “To say that the civil rights division had a special penchant for hiring liberal lawyers is twisting things.” [Savage, 2007, pp. 298-299]

Jay Bybee, the head of the Office of Legal Counsel (OLC) and the signatory on a number of memos authorizing torture and expanded presidential powers (see March 13, 2002 and August 1, 2002), is confirmed by the Senate to become a federal appeals court judge. The Senate Judiciary Committee scheduled Bybee’s confirmation hearing for the same day that Secretary of State Colin Powell was slated to give his presentation to the UN on Iraq’s weapons of mass destruction (see February 5, 2003); most of the committee’s Democrats choose to watch Powell’s presentation, thus only friendly Republican Senators are in the hearing. Bybee is confirmed easily. [Savage, 2007, pp. 182]

Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), is stepping down to become a federal judge (see February 5, 2003). White House counsel Alberto Gonzales and Vice President Cheney’s lawyer, David Addington, want OLC lawyer John Yoo to take Bybee’s place. But Attorney General John Ashcroft, miffed at Yoo’s bureaucratic maneuvers to give the White House a direct connection into the department and cut Ashcroft out of the loop, refuses. Yoo resigns in the summer of 2003 and resumes his position as a law professor at the University of California at Berkeley. Instead, Ashcroft and the White House will choose Jack Goldsmith to head the OLC (see October 6, 2003). Goldsmith seems a perfect replacement for Yoo—the two had coauthored one Wall Street Journal op-ed that claimed treaties were not binding on the US, and another Journal op-ed claiming that President Bush had the right to unilaterally withdraw the US from the Anti-Ballistic Missile Treaty (see May 26, 1972). Goldsmith was also a supporter of the administration’s military commissions program, noting that the need for “swift justice” was transcendant. [Savage, 2007, pp. 182]

A working group appointed by the Defense Department’s general counsel, William J. Haynes, completes a 100-page-plus classified report justifying the use of torture on national security grounds. The group—headed by Air Force General Counsel Mary Walker and including top civilian and uniformed lawyers from each military branch—consulted representatives of the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies in drafting the report. It was prepared for Secretary of Defense Donald Rumsfeld and was meant to respond to complaints from commanders working at the Guantanamo Bay base in Cuba who claimed that conventional interrogation tactics were inadequate. The conclusions in the report are similar to those of an August 1, 2002 memo (see August 1, 2002) drafted by the Justice Department’s Office of Legal Counsel (OLC). The OLC is said to have also contributed to this report. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004; Los Angeles Times, 6/10/2004] The report notes that both Congress and the Justice Department will have difficulty enforcing the law if US military personnel could be shown to be acting as a result of presidential orders. [Washington Post, 6/8/2004]President's Authority During War Gives Power to Order Torture, Supersede Law - One of the main conclusions of the report is that the president’s authority as commander-in-chief permits him during times of war to approve almost any physical or psychological interrogation method—including torture—irrespective of any domestic or international law. The report finds, “[I]n order to respect the President’s inherent constitutional authority to manage a military campaign… [the 1994 law banning torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.” The draft report clearly states that neither Congress, the courts, nor international law has jurisdiction over the president’s actions when the country is waging war. The report asserts that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Furthermore, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.” According to the document, the federal Torture Statute simply does not apply. “In order to respect the president’s inherent constitutional authority to manage a military campaign… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority,” the report states (The parenthetical comment is in the original document). A career military lawyer will later tell the Wall Street Journal that many lawyers disagreed with these conclusions, but that their concerns were overridden by the political appointees heading the drafting of the report. The lawyer explains that instead, military lawyers focused their efforts on limiting the report’s list of acceptable interrogation methods. [Wall Street Journal, 6/7/2004; Washington Post, 6/8/2004]Guantanamo Bay Not Covered under Torture Restrictions - The report also finds that the 1994 law barring torture “does not apply to the conduct of US personnel” at Guantanamo Bay, nor does it apply to US military interrogations that occurred outside US “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. [Washington Post, 6/8/2004]Legal Arguments to Defend against Torture Charges Conflict with International Statutes - The draft report lists several possible arguments that US civilian or military personnel might use to defend themselves against charges of torture or other war crimes. According to the administration’s lawyers, one argument would be that such actions were “necessary” in order to prevent an attack. However, this rationale seems to ignore very clear statements in the Convention Against Torture (see October 21, 1994) which states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Another line of defense, the report says, would be to claim that the accused had been acting under “superior orders” and that therefore no “moral choice was in fact possible.” Likewise, the report cites a Justice Department opinion, which the draft report says “concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president’s constitutional power.” This also contradicts the Convention against Torture, which states that orders from superiors “may not be invoked as a justification of torture.” The authors of the report also suggest in the draft report that accused officials could argue that they had “mistakenly relied in good faith on the advice of lawyers or experts,” adding, “Good faith may be a complete defense.” The memo also argues that the International Covenant on Political and Civil Rights (ICCPR), to which the US is a party, “does not apply outside the United States or its special maritime and territorial jurisdiction (SMTJ), and that it does not apply to operations of the military during an international armed conflict,” as the US “has maintained consistently.” Since the “Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States,” the ICCPR does not apply to Guantanamo Bay. The authors are also convinced that officials would not be prosecutable under US law, concluding that “constitutional principles” precluded the possibility that officials could be punished “for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts had the authority to “require or implement the prosecution of such an individual.” [Wall Street Journal, 6/7/2004]Defining Parameters of Interrogation Methods - The document attempts to define the parameters of lawful interrogation methods in terms of the degree of pain or psychological manipulation they cause. The report states that the infliction of physical or mental suffering does not constitute torture. To violate Section 2340 A of the US Code, prohibiting physical torture, suffering must be “severe,” the lawyers advise, noting that according to a dictionary definition, this would mean that the pain “must be of such a high level of intensity that… [it] is difficult for the subject to endure.” It must also be “inflicted with specific intent,” they say, meaning that the perpetrator expressly intends to cause severe pain and suffering. But if the defendant simply used pain and suffering as a means to an end, such specific intent would not exist. Under certain circumstances, the lawyers explain, the US would be justified in resorting to illegal measures like torture or homicide. They argue that such measures should be considered “self-defense” in cases where officials “honestly believe” that such actions would prevent an imminent attack against the US. “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law,” the draft document asserts. “In sum,” the panel determines, “the defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Civil law suits, the panel notes, by a foreign victim of torture will not apply to the US government. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004]Report May Not Define Practices, Pentagon Implies - A Pentagon spokesman later says the memo represents “a scholarly effort to define the perimeters of the law,” and notes: “What is legal and what is put into practice is a different story.” [Washington Post, 6/8/2004]

Sheldon Bradshaw, a deputy assistant attorney general at the Justice Department’s Office of Legal Counsel (OLC), sends a memo to Roz Rettman of the Office of Management and Budget. The memo remains secret, but it concerns an unspecified piece of draft legislation. It is in response to a Freedom of Information Act Request for documents concerning the treatment of detainees. [ProPublica, 4/16/2009]

The Bush administration reverses a long-standing policy requiring FBI agents to destroy their files on innocent US citizens, residents, and companies after investigations are closed. This information is now being put in government data banks to be shared with other agencies. [Washington Post, 11/6/2005]

The new head of the Justice Department’s Office of Legal Counsel (OLC), Jack Goldsmith, begins an internal review of the legality of the NSA’s warrantless wiretapping program (see December 15, 2005). The program is kept so secret that only four Justice officials even have access to information about its inner workings, a pattern of poor consultation he will call “the biggest legal mess I have ever encountered” when he testifies to the Senate about the program four years later (see October 2, 2007). Neither Attorney General John Ashcroft nor Justice’s top legal counsel know much about the program. When Goldsmith begins his legal review, the White House initially refuses to brief Deputy Attorney General James Comey about it. Goldsmith later testifies that he cannot find “a legal basis for some aspects of the program.” Upon completing the review, Goldsmith declares the program illegal, with the support of Ashcroft and Comey. However, White House officials are irate at Goldsmith’s findings. [Washington Post, 10/20/2007]

Quiet opposition builds within the Justice Department against the White House’s attacks on civil liberties and governmental process in the name of national security. The opposition is led by James Comey, the deputy attorney general under John Ashcroft, and includes the chief of the Office of Legal Counsel, Jack Goldsmith, and other like-minded Justice Department lawyers and officials. Comey, Goldsmith, and many of their colleagues will resign from their posts, some perhaps pressured by the White House to get out without making a fuss (see June 17, 2004). Comey and Goldsmith are the point men of this opposition group, though they will speak little in public about their experiences until they testify before the Senate in 2007 (see May 15, 2007 and October 2, 2007). Standing 'Up to the Hard-Liners' - Newsweek, one of the only mainstream media outlets to report on this “insurrection” at any length, will call it “one of the most significant and intriguing untold stories of the war on terror.” The magazine will report in 2006: “These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as far-fetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law.… These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.” Comey, Goldsmith, and their colleagues do not oppose the war on terror in principle, and share the administration’s concerns about the restraints imposed on the government in compiling intelligence on suspected terrorists. Their opposition centers on the process used by the White House, which routinely ignores and runs over Congress, the judiciary, and the law in implementing its agenda. White House Denial - The White House will continue to deny that this opposition group ever existed, with a spokeswoman for Vice President Dick Cheney saying in 2006: “The proposition of internal division in our fight against terrorism isn’t based in fact. This administration is united in its commitment to protect Americans, defeat terrorism and grow democracy.” [Newsweek, 2/6/2006]

Attorney General John Ashcroft recertifies the NSA’s warrantless wiretapping program as being within the law, three weeks after he and his deputy, James Comey, refused to certify it. The program had come under question in early 2004, when Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, wrote to Ashcroft and Comey expressing his doubts about the program’s legality (see September 9, 2007). For those three weeks, the program operated without Justice Department approval; President Bush personally recertified it himself, though it was suspended and subjected to an internal review (see March 12-Mid-2004). Ashcroft had previously refused to recertify the program while recuperating from surgery, despite pressure from White House officials Alberto Gonzales and Andrew Card (see March 10-12, 2004). Ashcroft, Comey, Goldsmith, and other Justice Department officials had even threatened to resign en masse if Bush recertified the program without their department’s support; Bush promised to revamp the program to address Ashcroft and Comey’s objections to the program, though what those changes are remains unclear. [Boston Globe, 5/16/2007; Associated Press, 6/7/2007]

The Washington Post reveals the existence of a secret August 2002 memo from the Justice Department. This memo advised the White House that torturing al-Qaeda terrorists in captivity “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the US war on terrorism (see August 1, 2002). The legal reasoning was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the military detention center at Guantanamo Bay (see March 6, 2003). Bush officials say that despite the memo, it has abided by the Geneva Conventions and other international treaties proscribing torture (see February 7, 2002). The incidents at Abu Ghraib, where numerous Iraqi prisoners were tortured, maimed, and sometimes murdered, were not policy, officials say. Human rights organizations and civil libertarians are appalled at the memo. “It is by leaps and bounds the worst thing I’ve seen since this whole Abu Ghraib scandal broke,” says Tom Malinowski of Human Rights Watch. “It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations.” A senior Pentagon official says that the Judge Advocate Generals (JAGs) were quick to challenge the Justice Department opinion when it was promoted by the Pentagon. “Every flag JAG lodged complaints,” the official says. A senior military attorney says of the memo: “It’s really unprecedented. For almost 30 years we’ve taught the Geneva Convention one way. Once you start telling people it’s okay to break the law, there’s no telling where they might stop.” [Washington Post, 6/8/2004] Attorney General John Ashcroft tells the Senate Judiciary Committee that he will not discuss the contents of the August 2002 memo, nor turn it over to the committee. “I believe it is essential to the operation of the executive branch that the president has the opportunity to get information from the attorney general that is confidential,” he says. [Washington Post, 6/8/2004]

Jack Goldsmith, once considered a rising star in the Bush administration (see October 6, 2003), resigns under fire from his position as chief of the Justice Department’s Office of Legal Counsel (OLC). In his nine-month tenure, Goldsmith fought against the administration’s warrantless wiretapping program, its advocacy of torture, and its policy of extrajudicial detention and trial for terror suspects. Goldsmith will not discuss his objections to the administration’s policy initiatives until September 2007, when he will give interviews to a variety of media sources in anticipation of the publication of his book, The Terror Presidency. Goldsmith led a small, in-house revolt of administration lawyers against what they considered to be the constitutional excesses of the legal policies advocated by the administration in its war on terrorism. “I was disgusted with the whole process and fed up and exhausted,” he will recall. Goldsmith chooses to remain quiet about his resignation, and as a result, his silence will be widely misinterpreted by media, legal, and administration observers. Some even feel that Goldsmith should be investigated for his supposed role in drafting the torture memos (see January 9, 2002, August 1, 2002, and December 2003-June 2004) that he had actually opposed. “It was a nightmare,” Goldsmith will recall. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007] Goldsmith will not leave until the end of July, and will take a position with the Harvard University Law School. Unlike many other Justice Department officials, he will not be offered a federal judgeship, having crossed swords with White House lawyers too many times. [Savage, 2007, pp. 191]

Alarmed by several attempts by Vice President Cheney’s office to place the independent Judge Advocate General (JAG) corps of military lawyers under the control of the military branches’ general counsels—all of whom are political appointees—a group of retired JAG officers asks the Senate Armed Forces Committee to intervene. Cheney has tried off and on for years to place the JAGs under political control (see June 1991-March 1992), but has pushed harder in the past year because of his belief that, as military law expert Scott Silliman will later explain, “the political appointees will not contest what the president wants to do [with detainees captured and held without trial or legal representation], whereas the uniformed lawyers… are going to push back.” The JAGs find an advocate in Senator Lindsey Graham (R-SC), himself a former JAG officer, who quickly pushes a new law through Congress forbidding Defense Department employees, including general counsels, from interfering with the ability of JAG officers to “give independent legal advice” directly to military leaders. The law also rescinds an effort by the Air Force to place its senior JAG officer under its general counsel. President Bush signs the law into effect, but issues a signing statement saying that the legal opinions reached by his political appointees will still “bind all civilian and military attorneys within the Department of Defense.” [Savage, 2007, pp. 286-289]

Televangelist Pat Robertson informs his viewers that God intends to remove three “liberal” Supreme Court Justices in time for President Bush to replace them with conservatives. According to Robertson, the Lord has told him, “I will remove judges from the Supreme Court quickly, and their successors will refuse to sanction the attacks on religious faith.” He asks his viewers to pray that three of the liberal justices retire. In 2003, he made similar remarks, and said: “I don’t care which three, I mean as long as the three conservatives stay on. There’s six liberals, so it’s up to the Lord.” [Associated Press, 7/17/2003; Unger, 2007, pp. 331-332]

Former White House counsel Alberto Gonzales is confirmed as attorney general by the Senate on a generally party-line vote of 60-36, one of the smallest margins of confirmation in Senate history. Gonzales’s confirmation hearings (see January 6, 2005 and January 6, 2005) have been the source of great controversy, with Senate Democrats accusing him of being deliberately evasive, obfuscutory (see January 17, 2005), and even obtuse during questioning, but with a solid Republican majority, Democrats have little ability to do anything to interfere with Gonzales’s ascension to power. [Savage, 2007, pp. 213] Senator Christopher Dodd (D-CT) explains his opposition to Gonzales: “What is at stake here is whether he has demonstrated to the Senate of the United States that he will discharge the duties of the office to which he’s been nominated, specifically whether he will enforce the Constitution and the laws of the United States and uphold the values upon which those laws are based. Regrettably, and disturbingly in my view, Alberto Gonzales has fallen short of meeting this most basic and fundamental standard.” Dodd adds that Gonzales “has endorsed, unfortunately, the position that torture can be permissible.” Fellow Senator Richard Durbin (D-IL) adds: “At the very least Mr. Gonzales helped to create a permissive environment that made it more likely that abuses would take place. You could connect the dots from the administration’s legal memos to the Defense Department’s approval of abusive interrogation techniques for Guantanamo Bay to Iraq and Abu Ghraib.” Republicans are incredulous that Democrats would oppose Gonzales’s candidacy, and imply that their opposition is racially based. “Is it prejudice?” asks Senator Orrin Hatch (R-UT). “Is it a belief that a Hispanic-American should never be in a position like this because he will be the first one ever in a position like this? Or is it because he’s constantly mentioned for the Supreme Court of the United States of America? Or is it that they just don’t like Judge Gonzales?” Senator Mel Martinez (R-FL) says: “This is a breakthrough of incredible magnitude for Hispanic-Americans and should not be diluted by partisan politics. Judge Gonzales is a role model for the next generation of Hispanic-Americans in this country.” [Fox News, 2/4/2005] When Gonzales is sworn in on February 14, President Bush will use the occasion to urge Congress to renew the controversial USA Patriot Act (see February 14, 2005). [Deseret News, 2/15/2005]

After a contentious Senate confirmation hearing (see February 3, 2005), White House senior counsel Alberto Gonzales is sworn in as attorney general of the United States. He is the first Hispanic to hold the office, and replaces former Attorney General John Ashcroft. President Bush says that the “attorney general has my complete confidence” and that he has been “a model of service” with a “deep dedication to the cause of justice.” Gonzales, Bush says, is now on “an urgent mission to protect the United States from another terrorist attack.” Bush uses the swearing-in press conference to urge Congress to renew all provisions of the USA Patriot Act, saying that “we must not allow the passage of time, or the illusion of safety, to weaken our resolve in this new war.” Gonzales says he will place his loyalty to the nation above his loyalty to Bush, noting that while the attorney general is “a member of the president’s Cabinet, a part of his team… the attorney general represents also the American people, and his first allegiance must always be to the Constitution of the United States.” [New York Times, 2/14/2005; Talking Points Memo, 2011]

John Negroponte. [Source: Public domain]President Bush nominates John Negroponte to be the first director of national intelligence, a new position created to oversee all the various US intelligence agencies. Negroponte has been serving as the US ambassador to Iraq for the previous year. Prior to that he had been the US ambassador to the United Nations and held a variety of other government positions. [New York Times, 2/17/2005] The nomination is controversial because, as the Los Angeles Times reports, “While ambassador to Honduras from 1981-85, Negroponte directed the secret arming of Nicaragua’s Contra rebels and is accused by human rights groups of overlooking—if not overseeing—a CIA-backed Honduran death squad during his tenure.” Additionally, “He also helped orchestrate a secret deal later known as Iran-Contra to send arms through Honduras to help the Contras overthrow the Sandinista government.” [Los Angeles Times, 3/26/2001] On April 21, 2005, the Senate will confirm Negroponte by a vote of 98 to two. In 2007, then-CIA analyst Valerie Plame Wilson will describe the establishment of a new position as a shocking blow to morale in the agency. Once Negroponte assumes the position, she will write, “the name ‘Central Intelligence Agency’ [becomes] a misnomer.” CIA employees were promised that the “new DNI structure would not be just an ‘extra bureaucratic layer’ over the CIA, but that’s exactly what it would become. It seemed to me that the White House was bent on emasculating the CIA by blaming it for the failures in Iraq and anything else they thought they could throw at the agency and have stick.” [Wilson, 2007, pp. 219] She will write of the announcement: “I remember standing in counterproliferation division’s large conference room in early 2005 when the creation of the DNI was announced to the division workforce. Our chief swore that the DNI would not be just another layer of useless bureaucracy—everyone acknowledged that we already had plenty of that. The veterans of intelligence reorganizations past made cynical comments under their breath.” Plame Wilson will observe that the reorganization of the US intelligence community under the DNI will be “an abysmal failure.” [Wilson, 2007, pp. 248]

Defense Secretary Donald Rumsfeld gathers a group of senior subordinates and warns them to stay away from three senators—John McCain (R-AZ), John Warner (R-VA), and Lindsey Graham (R-SC)—who are drafting a bill to govern the handling of terrorism suspects (see December 30, 2005). A Pentagon official with direct knowledge of the meeting will later recall, “Rumsfeld made clear, emphatically, that the vice president had the lead on this issue.” Though Vice President Dick Cheney has, as he so often has done in the past, ensured that his bureaucratic fingerprints are not on the issue, he has already staked out a hardline position for the White House. This time, it came as a last-minute insert in a July 2005 “statement of administration policy” by the Office of Management and Budget (OMB), where Nancy Dorn, Cheney’s former chief of legislative affairs, is deputy director. Cheney’s staff adds, without the required staff clearance, a paragraph to the OMB’s guidance for the 2006 defense appropriations bill (see July 21, 2005). Among those surprised by the position is Deputy Defense Secretary Gordon England, who for a year has advocated that the US issue clear rules about detention and interrogation of terror suspects. England attempts to clarify the issue (see Late 2005). [Washington Post, 6/25/2007]

Supreme Court Chief Justice William Rehnquist (see September 26, 1986), 80, dies after a ten-month battle with thyroid cancer. He will be replaced by John Roberts (see September 29, 2005), who formerly clerked for him. Rehnquist’s term as Chief Justice marked a “sea change” in the direction of the Court. Former Clinton solicitor general Walter Dellinger says: “It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist. I think that there’s just no question that he’s of enormous historical importance.” Conservative law professor and former Reagan Justice Department official Douglas Kmiec, a co-founder of the Federalist Society, says that Rehnquist presided over a “sea change” in the Court, taking it sharply to the right. [National Public Radio, 7/20/2005; Legal Times, 9/5/2005; Dean, 2007, pp. 129-137]

John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice. Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Harriet Miers. [Source: Harpers.org]After President Bush successfully places conservative judge John Roberts as chief justice of the Supreme Court (see September 29, 2005), he names White House counsel and personal friend Harriet Miers to replace the retiring Sandra Day O’Connor on the Court. Firestorm of Criticism - The media reacts adversely to this; Miers is said to be insufficiently qualified for the position and to have been chosen because of her loyalty to Bush. Her nomination is further derailed by opposition from hard-line conservatives, who do not believe she is conservative enough in her beliefs, particularly on abortion. Miers is certainly a weak choice from most viewpoints—she has no constitutional law experience and lacks a reputation as a strong legal thinker. She has never been a judge, nor even published an academic law journal article. Even conservative stalwart Robert Bork, who is still a center of controversy from his failed Court nomination (see July 1-October 23, 1987), calls Miers’s nomination “a disaster on every level.” When a letter Miers had written Bush for his birthday in 1997 is published in the media—in which Miers gushed over Bush in breathless, almost schoolgirlish prose, calling him “cool!” and “the best governor ever!”—the derision hits a fever pitch. When she submits a questionnaire to the Senate Judiciary Committee listing her background and qualifications for the job, a questionnaire almost devoid of pertinent and specific information, the ranking members of the committee threaten to have her do it over, a humiliation she avoids by withdrawing her name from consideration. Trumped-Up Dispute over Executive Privilege - The Senate asks to see Miers’s White House memos to judge the quality of her legal work, and the White House refuses, citing executive privilege. Many view the dispute as a trumped-up conflict designed to allow the Bush administration to save what little face it can in the debacle; neoconservative columnist Charles Krauthammer had suggested engineering just such a “conflict” to stage “irreconcilable differences over documents” that would allow the Bush White House to withdraw Miers’s nomination over the issue. Withdrawal - Miers indeed asks Bush to withdraw her nomination, and Bush cites the documents dispute in announcing the decision to pull Miers from consideration: “It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president’s ability to receive candid counsel,” Bush says. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.” Bush settles on another nominee, Samuel Alito, to replace O’Connor (see October 31, 2005 - February 1, 2006). [Savage, 2007, pp. 262-266; Dean, 2007, pp. 155]Staunch Advocate for Expanded Executive Power - In 2007, reporter and author Charlie Savage will write that, in his view, the Bush administration chose Miers for a simple reason: she is a staunch advocate for the continued expansion of presidential power. “Miers… could be counted on to embrace Bush’s expansive view of presidential powers,” he will write. Miers is quite loyal to Bush “and, through him, the institution he represented.” Miers’s adoration of Bush on a personal level would further guarantee her “solid support for any presidential claim of power that might come before the Court,” he will write. “Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.” On the questionnaire she submits to the Senate Judiciary Committee, Miers writes that as White House counsel, she has gained significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.… My time serving in the White House, particularly as counsel to the president, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” [Savage, 2007, pp. 265-267]

Congress passes a law requiring the Customs and Border Patrol to relocate its illegal immigrant checkpoints near Tucson, Arizona, every seven days in order to prevent smugglers from being able to avoid those checkpoints. President Bush signs the law, then issues a signing statement saying that the Border Patrol should view the “relocation provision as advisory rather than mandatory” because, in his view, only the president has the constitutional authority to decide how to deploy law enforcement officers. As a result of Bush’s signing statement, Border Patrol authorities disobey the law, and explain to investigators from the Government Accountability Office that the law is not mandatory, but “advisory.” White House spokesman Tony Fratto later says in response to the Border Patrol’s refusal to obey the law: “The signing statements certainly do and should have an impact. They are real.” [Savage, 2007, pp. 242-243; Boston Globe, 6/19/2007]

President Bush signs Executive Order 13388, which dramatically expands the powers of the US government to monitor and collect data on US citizens. [Executive Order 13388 of October 25, 2005, 10/25/2005] The order augments the power of “National Security Letters,” authorized in 1981 by then-President Ronald Reagan (see December 4, 1981), but rarely used against US citizens until the advent of the Bush administration and the USA Patriot Act. Thanks to the order, the data files are even more accessible to what the order calls “state, local, and tribal” governments as well as the undefined “appropriate private sector entities,” presumably private data-mining corporations that collect personal and financial data on US citizens for the government. Over 30,000 NSLs a Year - The FBI now issues over 30,000 NSLs a year, a hundredfold increase from earlier administration usages. NSLs are issued by FBI field supervisors at their discretion without court warrant or oversight by the judiciary or Congress. NSLs force their recipients—librarians, booksellers, employers, Internet providers, and others—to turn over any and all personal data on their customers and employees and are legally required not to tell the targets of the investigations about the letters or the data collection. An FBI supervisor can, without oversight or reasonable suspicion of terrorist activity, collect data on what a citizen makes, spends, invests, gambles, reads in books and on the Internet, buys online, and with whom that citizen lives, works, associates, telephones, and exchanges e-mails. Senior FBI officials admit that the huge spike in NSLs stems from the FBI’s new authority to collect tremendous amounts of data on US citizens not accused of criminal activities. And NSLs are now used to generate leads against terrorist suspects and not merely pursue them. NSLs Handled With Discretion, Officials Insist - FBI and White House officials insist that NSLs are handled with discretion and with a recognizance of Americans’ right to privacy. Joseph Billy Jr, the FBI’s deputy director for counterterrorism, says he understand that “merely being in a government or FBI database… gives everybody, you know, neck hair standing up.” But innocent Americans “should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law.” [Washington Post, 11/6/2005]

David Addington. [Source: Richard A. Bloom / Corbis]David Addington, the chief counsel for Vice President Dick Cheney, is named Cheney’s chief of staff to replace Lewis “Scooter” Libby, who was convicted of perjury and obstruction of justice in the Valerie Plame Wilson case (see February 13, 2002). [National Journal, 10/30/2005; MSNBC, 11/4/2005] Addington is described by one White House official as “the most powerful man you never heard of.” A former Justice Department official says of Addington, “He seems to have his hand in everything, and he has these incredible powers, energy, reserves in an obsessive, zealot’s kind of way.” He is, according to former Solicitor General Theodore Olson, Cheney’s “eyes, ears, and voice.” [US News and World Report, 5/21/2006] Addington is a neoconservative ideologue committed to dramatically expanding the power of the presidency, and a powerful advocate of the “unitary executive” theory of presidential power. He has been with Cheney for years, ever since Cheney chose him to serve as the Pentagon’s chief counsel while Cheney was Defense Secretary under Ronald Reagan. During that time, Addington was an integral part of Cheney’s battle to keep the Iran-Contra scandal from exploding (see 1984). [Washington Post, 10/11/2004; National Journal, 10/30/2005; MSNBC, 11/4/2005; US News and World Report, 5/21/2006] According to Larry Wilkerson, the former chief of staff to former Secretary of State Colin Powell, documentary evidence shows that Cheney’s office, and Addington in particular, were responsible for giving at least tacit approval for US soldiers to abuse and torture prisoners in Iraq (see January 9, 2002). In an administration devoted to secrecy, Addington stands out in his commitment to keeping information away from the public. [Washington Post, 10/11/2004] Though Addington claims to have a lifelong love affair with the Constitution, his interpretation of it is somewhat unusual. One senior Congressional staffer says, “The joke around here is that Addington looks at the Constitution and sees only Article II, the power of the presidency.” [US News and World Report, 5/21/2006] Addington’s influence in the White House is pervasive. He scrutinizes every page of the federal budget, hunting for riders that might restrict the power of the president. He worked closely with Gonzales to oppose attempts by Congress to pry information from the executive branch, and constantly battles the State Department, whose internationalist philosophy is at odds with his and Cheney’s own beliefs. [Washington Post, 10/11/2004] Former Reagan Justice Department official Bruce Fein calls Addington the “intellectual brainchild” of overreaching legal assertions that “have resulted in actually weakening the presidency because of intransigence.” According to Fein, Addington and Cheney are doing far more than reclaiming executive authority, they are seeking to push it farther than it has ever gone under US constitutional authority. They have already been successful in removing executive restraints formerly in place under the War Powers Act, anti-impoundment legislation, the legislative veto and the independent counsel statute. “They’re in a time warp,” Fein says. “If you look at the facts, presidential powers have never been higher.” [Washington Post, 10/11/2004] “He thinks he’s on the side of the angels,” says a former Justice Department official. “And that’s what makes it so scary.” [US News and World Report, 5/21/2006]

President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]

Brett Tolman. [Source: ABC4 (.com)]Brett Tolman, a Republican Senate Judiciary Committee official, tells Assistant Attorney General William Moschella that he will perform a “comprehensive fix” to the USA Patriot Act reauthorization coming up for approval in Congress (see March 9, 2006). Tolman and Moschella are referring to a provision in the reauthorization legislation that would allow the attorney general to appoint interim US Attorneys on an indefinite basis without having them go through Senate confirmation, and remove the ability of a federal court to appoint a US Attorney (see July 2005 - March 2006). Moschella suggests Tolman use the “comprehensive fix” of repealing Section 546 of Title 28 of the United States Code, subsections C and D, and replacing them with the following language: “A person appointed as United States Attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the president under section 541 of this title.” Late the same evening, Tolman receives an email from Moschella instructing him to quietly insert the provision in the USA Patriot Act reauthorization bill that would eliminate a 120-day limit for “interim” US Attorneys to serve without Senate confirmation. In essence, the provision would allow such “interims” to serve indefinitely, cutting the Senate entirely out of the process of naming US Attorneys and allowing the attorney general to make political appointments without oversight. Tolman replies, “I will get the comprehensive fix done.” He slips the provision into a draft of the bill while it is in conference committee. None of the members notice the provision, and it is part of the bill as signed into law in March 2006 (see March 9, 2006). Tolman himself is one of the first beneficiaries of the new provision, becoming the US Attorney for Utah. When the new provision comes to light in early 2007, both chambers of Congress vote overwhelmingly to repeal it. This is one of numerous “stealth provisions” the White House will have inserted into legislation with the help of compliant Congressional Republicans and staffers. [Savage, 2007, pp. 316; US Department of Justice, 3/23/2007 ] Moschella will later take the credit for the provision, and will tell reporters that he made the change on behalf of the Justice Department “without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.” [Talking Points Memo, 2011]

Supreme Court Chief Justice John Roberts (see September 29, 2005) has his first opportunity to name a judge to the secret Foreign Intelligence Surveillance Court. Judge James Robertson has resigned from the court in protest of the administration’s warrantless wiretapping program (see December 21, 2005). Roberts chooses as his replacement Judge Robert Bates, who voted to dismiss the General Accounting Office’s lawsuit attempting to force Vice President Cheney to release documents surrounding his energy task force (see May 10, 2005). [Savage, 2007, pp. 262]

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